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4,400	https://www.mspb.gov/decisions/nonprecedential/PURIFOY_LAMONTE_L_CH_0752_14_0185_M_1_FINAL_ORDER_1924755.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LAMONTE L. PURIFOY, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-0752 -14-0185 -M-1 DATE: May 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lamonte L. Purifoy , Milwaukee, Wisconsin, pro se . Erin Buck Kaiser , Milwaukee, Wisconsin, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 This case is before the Board on remand from the U.S. Court of Appeals for the Federal Circuit. Originally, the administrative judge issued an initial decision mitigating the appellant’s removal to a 40 -day suspension. Upon the agency’s petition for review, the Board reversed the mitigation and reinstated the removal . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 Federal Circuit vacated the Board’s final order and remanded the case for further consideration. For the reasons discussed below, and having considered the issue s raised in the court’s Opinion and Order, we GRAN T the agency’s petition for review, REVERSE the initial decision that mitigated the appellant’s removal to a 40 -day suspension , and REINSTATE the appellant’s removal . BACKGROUND ¶2 The agency employed the appellant as a WG -2 Housekeeping Aid. Purifoy v. De partment of Veterans Affairs , MSPB Docket No. CH -0752 -14-0185 -I-1, Initial Appeal File (IAF), Tab 10a at 24 . When he began employment with the agency i n August 2011, he was on parole, having been sentenced to prison for felony burglary, and was subject to the supervision of a parole agent. Id. at 133. As part of his parole, he was required to report for visits every other week with his parole agent and to refrain from using illegal substances and alcohol. Hearing Transcript (HT) at 6 -7 (testimony of the parole agent). The appellant admitted to violating his parole by using illegal drugs in October and December 2012 . Id. at 6; IAF, Tab 35 at 18, 21. Although he was taken into custody , he was released in January 2013, placed on maximum supervision, required to sign rules of community supervision, and referred to community -based treatment. HT at 6 (testimony of the parole agent) ; IAF, Tab 35 at 18 , 21-22. The appellant failed to report to his supervised visits on March 22 and April 2, 2013 . HT at 6 (testimony of the parole agent) ; IAF, Tab 35 at 25 -26. He also failed to report to work on April 4 and 5, 2013. IAF, Tab 10a at 57. ¶3 On April 8, 2013 , after asking the proposing official2 for permission , but without filling out the proper paperwork or contacting his first -line supervisor as instructed by the proposing official, the appellant was admitted via the emergency 2 The appellant’s third -line supervisor was the Acting Hospital Housekeeping Officer and served as the proposing official in this action. HT at 105, 107, 114 (testimony of the proposing official) . 3 room to an agency substance abuse program . HT at 108 (testimony of the proposing official) ; IAF, Tab 10a at 39 -40. He then was transfe rred to another agency facility’s substance abuse program. IAF, Tab 10a at 40. During this time, although the appellant was required to contact his parole agent to notify her of his whereabouts, he did not do so. HT at 18 -19 (testimony of the par ole agent). ¶4 The parole agent directed the appellant to report to her office on May 1, 2013. Id. at 8-9. Thus, on May 1, 2013, the appellant was discharged from the agency facility by bus to report to his parole agent. IAF, Tab 9 at 9. He did not report to the parole agent. Accordingly, on May 4, 2013, the parole agent issued a warrant for his arrest based upon continued violations of his parole , as well as violations of the rules of community supervision that he had agreed to in January 2013, including the following : (1) failing to be present for a schedule d home visit on or about March 22, 2013; (2) failing to report for a scheduled offi ce visit on or about April 2, 2013; (3) absconding from his supervision beginning on or about April 2, 2013 , by leaving his whereabo uts and activities unknown; (4) consuming alcohol, by his own admission, in April and May 2013; and (5) failing to report to the parole agent’s office on or about May 2, 2013, as directed. IAF, Tab 35 at 7. ¶5 The appellant did not turn himself in to the detention facility until May 9, 2013 . HT at 9-10 (testimony of the parole agent) , 176 -79 (testimony of the appellant) ; IAF, Tab 35 at 22 . One week after arriving at the detention facility, he was offered the opportunity to enroll in a substance abuse treatment program , which was located within the detention facility . HT at 11 -12 (testimony of the parole agent) , 179 -80 (testimony of the appellant) ; IAF, Tab 9 at 7, Tab 35 at 14-15. On June 4, 2013, the appellant agreed to enroll in the program within the detention facility , and he began treatment at the end of July 2013 , when a new session started. HT at 11-13 (testimony of the parole agent) , 179 -80 (testimony of the appellant) ; IAF, Tab 9 at 7 . On September 2 3, 2013, the appellant was found guilty of threatening another inmate and, therefore, was terminated from 4 the treatment program and returned to the general population of the detention facility on September 27, 2013 . IAF, Tab 35 at 24 , 27. He was released from the detention facility on November 4, 2013 , and returned to work on November 7, 2013. HT at 14 (testimony of the parole agent) , HT at 119 (testimony of the propos ing official) . ¶6 Although the proposing official told the appellant to inform his first -level supervisor that he would be away from work and that he needed to complete certain forms to request leave, the appellant failed to do so. HT at 108, 112 -13, 118-19 (testimony of the proposing official). When the appellant returned to work, he still had not complete d the necessary paperwork for his absence, as instructed by the proposing official. HT at 118-19 (testimony of the proposing official). ¶7 Meanwhile, the agency had issued the appellant a duty status letter on May 9, 2013, which was returned as undeliverable on May 30, 2013 . IAF, Tab 10a at 81 -82. On July 29, 2013, while the appellant was still in the detention facility, the agency proposed to remove him based upon one charge of absence without leave ( AWOL ) since April 4, 2013. Id. at 74 -76. In response, the appellant asserted, among other things, that the proposing official allowed him to seek treatment in the agency facility. Id. at 61 -70. After considering his response, the agency rescinded this proposal on October 8, 2013 , and reissued another propos ed removal that same date . Id. at 56 -58. In the new proposed removal, the agency charged the appellant as follows: (1) 2 days of unauthorized absence on April 4 and April 5, 2013 ; and (2) an extended unauthorized absence due to incarceration of approximately 6 months beginning from the date he entered the detention facility on May 7, 2013 , and continuing until the issuance of the proposal on October 8, 2013 . Id. at 57-58. The appellant also responded to this proposal from the detentio n facil ity. Id. at 39 -53. On October 29, 2013, while the appellant still was in the detention facility, the Medical Center Director 5 issued a decision sustaining both charges and imposing his removal, effective November 15, 2013. Id. at 27-29. ¶8 The appellant filed the instant appeal challenging his removal and requested a hearing . IAF, Tab 1. After holding a hearing, the administrative judge sustained charge 1 , sustained charge 2 as to only the 5-week period from September 27 until November 4, 2013 , and miti gated the removal to a 40 -day suspensio n. IAF, Tab 40, Initial Decision (ID). Regarding the second charge, the administrative judge found that the agency had not proven that the appellant’s absence was unauthorized until he was terminated from the substa nce abuse treatment program and returned to the general population of the detention facility on September 27, 2013 . ID at 6-10. ¶9 The agency filed a petition for review challenging the administrative judge’s decision to sustain only a portion of the secon d charge and to mitigate the penalty . Petition for Review ( PFR ) File, Tab 1. Without addressing whether the agency proved all of the second charge, the Board granted the agency’s petition, finding that mitigation was not appropriate , and reinstat ed the appellant’s removal. Purifoy v. Department of Veterans Affairs , MSPB Docket No. CH-0752 -14-0185 -I-1, Final Order (June 11, 2015). The appellant appealed the Board’s final order to the Federal Circuit, which vacated the decision and remanded the case for further adjudication. Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 (Fed. Cir. 2016) . Specifically, the court found that the Board failed to properly consider the adequacy and effectiveness of alternative sanctions to deter similar misconduct in the future and the potential for the appellant’s rehabilitation. Id. at 1371 -73. The court instructed that , in considering the appella nt’s potential for rehabilitation on remand, the Board must afford “special deference” to the administrative judge’s findings regarding the appellant’s propensity for rehabilitation because these findings are “necessarily intertwined” with credibility find ings. Id. at 137 2-73. Further, the court 6 encouraged the Board to “revisit its analysis of these factors alongside all other relevant Douglas factors on remand .” Id. at 1373. DISCUSSION OF ARGUME NTS ON REVIEW ¶10 When the B oard sustains all of an agency’s charges, th e Board may mitigate the agency’ s original penalty to the maximum reasonable p enalty when it finds the agency’s original penalty too severe. Brough v. Department of Commerce , 119 M.S.P.R. 118, ¶ 9 (2013). Notwithstanding that authority, the Board has long held that, when all of the charges are sustained, even when some of the specifications are not, the agency’ s penalty determination is entitled to deference and should be reviewed only to determine if the agency considered all of the relevant factors and exercised its discretion within the tolerable limits of reasonableness.3 Id. In doing so, the Board mus t give due we ight to the agency’ s primary discretion in maintaining employee discipline and efficie ncy, recognizing that the Board’ s functio n is not to displace management’ s responsibility, but to ensure that managerial judgment has been exercised properly . Id. ¶11 In assessing the reasonableness of a penalty, the Board places primary importance upon the nature and seriousness of the offense an d its relation to the appellant’ s duties, position, and responsibilities, including whether the offense was intentional or was repeated frequently . Batara v. Department of the Navy , 123 M.S.P.R. 278 , ¶ 8 (2016 ). The Board also will consider how the appel lant’ s misconduct affected the agency’s mission. See Jones v. U.S. Postal Service , 103 M.S.P.R. 561 , ¶ 21 (2006), aff’d , 214 F. App ’x 984 (Fed. Cir. 2007). ¶12 For the reasons set forth below, and after careful consideration of our reviewing court’s concerns , we find that the removal penalty is within the tolerable limits of reasonableness, particularly given the seriousness of the 3 When, as here, the Board has not sustained the entire period of the appellant’s extended absence, it will consider the penalty as if the charge was sus tained but not all of the underlying specifications were sustained. See Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir. 1990) . 7 appellant’s misconduct and the negative effect of his absence on the agency’s ability to care for veterans, and we reinstate the removal penalty. The appellant’s extended unauthorized absence was a serious offense that adversely affected the agency’s missi on of serving veterans . ¶13 We find that the appellant’s misconduct is serious and that, contrary to the administrative judge’s finding, the fact that the agency did not prove all of the second charge does not lessen the seriousness of the misconduct. ID at 1 1. The administrative judge found that the prove n misconduct was less severe than the agency’s charge of unauthorized absence for 6 months because, ultimately, the agency only proved that the appellant’s absence was unauthorized for 40 days (the 2 days no ted in the first charge and the 38 days that followed his separation from the treatment program in the second charge). Id. However , the Board repeatedly has held that an appellant’s extended absence is a serious offense and, even only considering the sus tained length of time, the absence here was substantial . See, e.g., McCauley v. Department of the Interior , 116 M.S.P.R. 484 , ¶¶ 2, 14 (2011) (stating that the appellant’s misconduct was serious and supported the removal penalty when he had been absent for more than 20 consecutive workdays) ; Thom v. Department of the Army , 114 M.S.P.R. 169 , ¶¶ 2, 7 (2010). Accordingly, we find that the seriousness of the appellant’s misconduct weighs strongly in favor of reinstating the removal penalty. ¶14 In addition to the serious ness of the appellant’s misconduct , we find that the effect of the appellant’s extended absence on the agency’s ability to accomplish its important mission weighs strongly in favor of reinstating the removal penalty . The deciding official testified, “ my responsibility to the veterans that we serve is to make sure that there is a workforce available to . . . do the work.” HT at 79 (testimony of the deciding official). He further testified that t he appellant’s position is essential because it keeps the med ical center clean and meeting certain standards. Id. He also testified that, if there is insufficient staffing, it creates a burden for the facility and “. . . if [he is] unable to maintain the facility 8 appropriately because [he does] not have people to do so, then that creates a liability for the facility in the delivery of care to the veterans.” Id. Additionally, the deciding official testified that the appellant’s absence specifically affected the agency’s mission because it required the agency to supplement its staff. Id. at 62. Accordingly, we find that the appellant’s absence affected the agency’s ability to accomplish its critical mission to care for veterans and that this serves as an aggravating factor. See Leach v. Departmen t of Veterans Affairs , 107 M.S.P.R. 229, ¶¶ 14-15 (2007) (finding that the deciding official properly considered relevant factors su ch as the fact that the appellant’s absence placed an additional workload on coworkers) . The deciding official’s loss of confidence in the appellant and his concern that the appellant’s misconduct conveyed a negative message to other employees are also aggravating factors. ¶15 Further, the deciding official testified that he did not think that the appellant “was going to come back and be a good employee ” and, according to the Douglas factors worksheet, which the deciding official consid ered in imposing the appellant’s removal, his supervisors “lost all confidence in his ability to perform his assigned duties” because he was not present to perform them . IAF, Tab 10a at 35; HT at 61, 66 (testimony of the deciding official) . Thus, we find tha t this factor also weighs in favor of reinstating the removal penalty. See Young v. U.S. Postal Service , 79 M.S.P.R. 25, 40 (1998) (considering the deciding official’s statement that he lost confidence in the appellant’s ability to perform her position in sustaining her removal for AWOL). We also have considered as an overall aggravating factor the fact that , although the appellant’ s misconduct was not particularly notorious, the deciding official was concerned about the message that permitting the appellant’s misconduct conveyed to other employees, the veterans, and the public. HT at 65 (test imony of the deciding official). 9 The appellant’s notice regarding a possible adverse action and the consistency of the agency’s action with its table of penalties are not mitigating factors. ¶16 Next, we find that the appellant’s notice about possible agency adverse action in response to his absence and the consistency of the removal penalty with the table of penalties are not mitigating factors . The administrative judge found that, because the agency told the appellant that he could be away from work to obtain substance ab use treatment, he rightfully believe d that his absence was authorized as long as he continued to be in treatment. ID at 12. We must defer to this finding, because it is “necessarily intertwined” with an analysis of the appellant’s demeanor when he testif ied that he believed that he had permission to receive treatment. See Purifoy , 838 F.3d at 137 3; HT at 196 (testimony of the appellant). Nevertheless , there is no basis for finding that the appellant believed that any permission from the agency to get tr eatment extended to the period when he was released into the general detention facility population after threats he made to another inmate , considering he was terminated from the treatment program at that time . ID at 9-10; HT at 108 -09, 112 -13 (testimony of the proposing official) , 166 (testimony of the human resources specialist) . Thus, we find that the fact that the agency told the appellant that he could receive treatment does not serve as a mitigating factor because the sustained conduct here occurred after he had receiv ed said treatment . ¶17 We also find that the removal penalty is consistent with t he table of penalties and thus is not a mitigating factor . The administrative judge considered that a 40 -day suspension was consistent with the agency’s table of penalties for a third offense of unexcused or unauthorized absence. ID at 12; IAF, Tab 10 a at 142, 144. However, the deciding official testified that the appellant’s prolonged absence would have been considered mo re than a third offense. HT at 93 (testimony of the deciding official). In any event , even assuming that the appellant’s misconduct only constituted a third offense, the agency’s table of penalties provides that the penalty for a third offense of unexcused or 10 unauthorized absence is a 14-day suspension to removal. IAF, Tab 10 a at 144. Therefore, while the administrative judge’s analysis is correct that a 40 -day suspension is consistent with the table of penalties , the penalty of removal also is consist ent with the table of penalties . Accordingly, the agency’s chosen penalty did not exceed that recommended by the table of penalties and is within the tolerable limits of reasonableness . The agency’s removal of other employees for prolonged unexcused absences and the deciding official’s c oncern about the adequacy of a lesser penalty to deter future misconduct support s the removal penalty . ¶18 Next , we have considered that the agency has imposed removals in similar situations. According to the Douglas factors worksheet, the appellant’s facilit y had removed a number of employees for extended, unexcused absences and AWOL, even when the employee had no previous discipline. IAF, Tab 10a at 35. We find that this factor favors reinstating the removal penalty . ¶19 Additionally, pursuant to the Federal Circuit’s instructions, we have reconsidered “the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.” Purifoy , 838 F.3d at 1371 -72 (citing Douglas v. Veterans Administration , 5 M.S.P.R . 280, 305-06 (1981) ). The deciding official here expressed concerns about deterring similar misconduct by other employees and the message that imposing a lesser penalty would send to other employees . HT at 65-66 (testimony of the deciding official ); IAF, Tab 10a at 38 . The proposing official testified that he would object to the appellant returning to the work place because of the negative precedent such an action would set . HT at 119-20 (testimony of the proposing official). We find that this demonstrates a proper exercise of management discretion and thus find that this factor supports reinstating the removal penalty . See, e.g., Washington v. U.S. Postal Service , 35 M.S.P.R. 195 , 200 (1987) (finding that the agency did not abuse its discretion in determ ining that a penalty less than the appellant ’s removal would be inadequate to deter the appellant ’s continued conduct ). 11 The mitigating factors do not outweigh the seriousness of the misconduct and the negative effect of his absence on the agency’s ability to care for veterans. ¶20 Consistent with the Federal Circuit’s instruction, we also have reconsidered the appellant’s potential for rehabilitation and find that it serves as a mitigating factor. Purifoy , 838 F.3d at 1372 -73. The administrative judge found that the appellant cares about his job and, although he did not complete the substance abuse program in the detention facility, he continued to complete treatment and had not suffer ed a relapse. ID at 12; HT at 198 (testimony of the appellant). We defer to the administrative judge’s finding, based upon these facts , that the appellant had a good potential for rehabilitation, because the finding implicitly relies on a determination that the appellant appeared credible at the hearing when he described his re habilitative efforts. See Purifoy , 838 F.3d at 1372 . Specifically, the appellant testified that he was attending meetings for substance abuse treatment three times per week and that he had not suffered a relapse since being released f rom the detention fa cility. HT at 198 (testimony of the appellant) . We thus find that the appellant’s potential for rehabilitation is a mitigating factor. See Batara , 123 M.S.P.R. 278, ¶ 18 (considering th at the appellant’s actions in completing a drug treatment program could constitute a mitigating factor demonstrating his potential for rehabilitation). ¶21 Further, we are sympathetic to the fact tha t the appellant was suffering from substance abuse and mental health issues during his absence . IAF, Tab 35 at 22. However, the administrative judge sustained the unexcused absence charge based upon the period after his discharge from the substance abuse program when he threatened another individual and not based upon his treatment in the program, thus diminishing the mitigating weight of this factor . ID at 6-10; see Saiz v. Department of the Navy , 122 M.S.P.R. 521 , ¶ 14 (2015) (finding that the appellant’s completion of inpatient and outpatient drug and alcohol treatment was a miti gating factor but that the value of this factor was diminished by the fact that he did not participate in this treatment until after the incident in question). 12 ¶22 We also have considered other mitigating factors. In particular , the appellant’s 2 years, 9 mon ths, and 12 days of military service is a mitigating factor . IAF, Tab 10a at 134; see Boo v. Department of Homeland Security , 122 M.S.P.R. 100 , ¶ 21 (2014) (finding that the appellant’s lengthy military service was a mitigating factor) . Likewise , we agree with the administrative judge that, because the appellant’s job duties did not involve supervision or fiduciary duties and his position was not prominent , the nature of his position is a mitigating factor . ID at 11-12; IAF, Tab 10a at 34. Nevertheless, because the deciding official was concerned that the appellant’s position required him to interact with veterans, their families , and the public, we find that the mitigating weight of this factor similarly is diminished . IAF, Tab 10a at 34. ¶23 Next, we find that the appellant’s excellent job performance is a mitigating factor . He began employment with the agency as a Houseke eping Aid on August 14, 2011. Id. at 129. The agency quickly promoted him, effective April 22, 2012. Id. at 121. The appellant received fully successful or excellent ratings in all elements and received an overall excellent rating i n his performance appraisal that covered the period from April 13 to September 30, 2012. Id. at 122-27; see Suggs v. Department of Veterans Affairs , 113 M.S.P.R. 671 , ¶ 12 (2010) (considering mitigating factors such as the appellant’s selection for a promotion and an “outstanding” rating on his last performance appraisal), aff’d , 415 F. App’x 240 (Fed. Cir. 2011) . Additionally, as the administrative j udge found, prior to his absence, the appellant did not have a disciplinary record , which weighs in favor of mitigation . ID at 11; see Saiz, 122 M.S.P.R. 521 , ¶ 13. ¶24 However, despite the appellant’s favorable job performance, he only was employed with the agency from August 2011 , to November 2013 , and, during that time, he was in treatment or otherwise in the detention facility from April until November 2013. HT at 14 (testimony of the parole agent) ; IAF, Tab 10a at 27-29, 129 . Thus, we find that the fact that he actually worked at the agency for fewer than 2 years diminishes the mitigating value of his job performance . 13 See Simmons v. Department of the Air Force , 99 M.S.P.R. 28, ¶¶ 41, 44 (2005) (finding that the deciding official pr operly considered that the appellant committed the charged misconduct after being employed with the agency for only approximately 18 mo nths), aff’d sub. nom. Gebhardt v. Department of the Air Force , 186 F. App’x 996 (Fed. Cir. 2006). ¶25 Based upon the foregoing, we find that, despite several mitigating factors, including the appellant’s potential for rehabilitation and his excellent —but brief —job performance , the agency exercised its discretion within the tolerable limits of reasonablenes s by removing the appellant based upon the serious ness of his extended absence for 40 days , its effect on the agency’s ability to care for veterans , and the deciding official’s concerns about imposing a lesser penalty . See McCauley , 116 M.S.P.R. 484 , ¶¶ 2, 14 (sustaining the appellant’s removal based upon her absence for more than 20 consecutive workdays) ; Thom , 114 M.S.P.R. 169 , ¶¶ 2, 7 (finding that removal was a reasonable penalty for AWOL of almost 1 month); Maddux v. Department of the Air F orce , 68 M.S.P.R. 644, 645 -46 (1995) ( finding that removal was a reasonable penalty for approximately 2 weeks of AWOL , despite the fact that there were mitigating factors, including the employee’s personal issues ). Accordingly, the removal penalty is reinstated. NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 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. 14 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: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which i s contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/p robono for information regarding pro bono representation 15 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation i n a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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 16 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 pet ition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your 5 The o riginal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, per manently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circ uit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 17 petition for review within 60 days of the date of issuance of this deci sion. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services p rovided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be 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 o f the Board	PURIFOY_LAMONTE_L_CH_0752_14_0185_M_1_FINAL_ORDER_1924755.pdf	2022-05-16	null	CH-0752	NP
4,401	https://www.mspb.gov/decisions/nonprecedential/EDWARDS_SENIA_V_CH_844E_17_0332_I_1_FINAL_ORDER_1924762.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SENIA V. EDWARDS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-844E -17-0332 -I-1 DATE: May 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Senia V. Edwards , Livonia, Michigan, pro se. Linnette L. Scott , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for revie w of the initial decision, which affirmed the Office of Personnel Management’s dismissal of her application for disability retirement benefits as untimely filed. On petition for review, the appellant merely asserts that she “disagree[s] with the [initial] decision.” Petition 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 for Review File, Tab 1 at 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 interp retation 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 a n 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 d ecision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and t he appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice o n which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their resp ective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employm ent Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operation s within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Op portunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunit y Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by a ny court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the 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. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	EDWARDS_SENIA_V_CH_844E_17_0332_I_1_FINAL_ORDER_1924762.pdf	2022-05-16	null	CH-844E	NP
4,402	https://www.mspb.gov/decisions/nonprecedential/SMITH_IN_RE_PAUL_D_MARSHAL_ARLENE_AT_0831_10_0059_M_1_FINAL_ORDER_1924794.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ARLENE SMITH IN RE PAUL D. MARSHAL L, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency, and MARTHA MARSHALL , Intervenor. DOCKET NUMBER AT-0831 -10-0059 -M-1 DATE: May 16, 2022 THIS FINAL ORDER I S NONPRECEDENTIAL1 Jeffrey S. Stephens , Esquire, Beaufort, South Carolina, for the appellant. Jane Bancroft , Washington, D.C., for the agency. Patrick D. Riley , Esquire, Lorain, Ohio , for the intervenor. BEFORE Raymond A. Limon , Vice Chair Tristan L. Lea vitt, 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 a re not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM), finding that she was not entitled to a former spouse survivor annuity. For the reasons discussed below, we GRANT the appellant’s petition for review , VACATE the initial decision, and REVERSE OPM’s reconsideration decision. As explained below, we find that the appellant is entitled to a former spouse survivor annuity. BACKG ROUND ¶2 This case is before the Board after the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) vacated the Board’s decision in Arlene Smith In re Paul D. Marshal l v. Office of Personnel Management , MSPB Docket No. AT -0831 -10- 0059 -B-2, Final Order (Jan. 22, 2014), in which the Board determined that the appellant was not entitled to a former spouse survivor annuity based on a 1987 qualified domestic relations order (QDRO) . Smith v. Office of Personnel Management , 578 F. App’x 973 (Fed. Cir. 20 14). The Federal Circuit remanded the appeal, instructing the Board to consider the effect, if any, of a 1999 modification of the QDRO . Id. The relevant language of the 1987 QDRO is as follows: 7. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Pl aintiff, ARLENE MARSHALL, shall retain a vested interest in the Defendant’s pension with the Federal Civil Service Retirement System pursuant to a duly Qualified Domestic Order which the Court creates herein as follows: . . . B. At the time the primary participant, PAUL MARSHALL, actually receives his share of the pension; however, no later than his attaining the age of 65 years, Plaintiff, ARLENE MARSHALL . . . , shall receive a sum equal to 20% of the Defendant’s presently vested amount; 3 C. Said dis tribution to the Plaintiff, ARLENE MARSHALL, as alternative recipient shall be for the rest of her life, subject to the terms and conditions of said Retirement Plan. In the event of the death of the primary participant, . . . the said alternative recipien t, ARLENE MARSHALL, . . . shall be entitled to the surviving spouse’s allowance as alternative beneficiary in the event said interest is greater than 20%, and in the event the primary participant has not named one or more alternative beneficiaries; however , in no event shall ARLENE MARSHALL’s interest be less than said 20% of the presently vested interest as set forth above. . . . E. It is the intention of this Court to create a duly qualified domestic order and the Court retains jurisdiction to do any an d all things necessary to enforce its order and intent to provide Plaintiff, ARLENE MARSHALL, with a vested 20% per month of Defendant’s retirement benefits with the Federal Civil Service Retirement System as heretofore set forth, pursuant to the Pension R eform Act of 1984, effective January 1, 1985, and pursuant to law . ¶3 Arlene Smith In re Paul D. Marshal l v. Office of Personnel Management , MSPB Docket No. AT -0831 -10-0059 -B-1, Appeal File, Tab 6, Subtab 2d at 21‑27. A December 21, 1999 modification of the 1987 QDRO made specific amendments as follows: 1. Paragraph 7(B) is hereby deleted in its entirety and replaced with the following: “(B) At the time the primary participant, PAUL MARSHALL, actually receives h is share of the pension; however, no later than his attaining the age of sixty -five (65) years, Plaintiff, ARLENE MARSHALL, . . . shall receive [$338.60] per month;” 2. Paragraph 7(C) is hereby deleted in its entire ty and replaced with the following: “(C) Said distribution to the Plaintiff, ARLENE MARSHALL, as alternate recipient shall be for the rest of her life, subject to the terms and conditions of said Retirement Plan.” 3. The fourth Line of Paragraph 7(E) is hereby modified to read as follows: “provide Plaintiff, ARLENE MARSHALL, with [$338.60]” 4. A new Paragraph 7(G) is hereby added as follows: 4 “The Defendant, PAUL MARSHALL, has remarried as evidenced by the marriage license attached hereto as Exhibit B. Defendant’s spouse, MARTHA MARSHALL, may be named by Defendant, PAUL MARSHA LL, as his surviving spouse for all pension and retirement benefits available to a surviving spouse except for those benefits allocated to the Plaintiff, ARLENE MARSHALL, as set forth in Paragraph 1 of this Journal Ent ry.” 5. A new Paragraph 7(H) is hereby added as follows: “The Court has considered the requirements and standard terminology provided in Part 838 of Title 5, Code of Federal Regulations. The terminology used in the provisions of this Order that concern benefits under the Civil Service Retirement System are governed by the standard conventions established by that part.” ¶4 Id. at 17 -18. Thus, the 1987 QDRO as modified by the 1999 order provides as follows : B. At the time the primary participant, PAUL MAR SHALL, actually receives his share of the pension; however, no later than his attaining the age of sixty -five (65) years, Plaintiff, ARLENE Marshall . . . , shall receive [$338.60] per month; C. Said distribution to the Plaintiff, ARLENE MARSHALL, as alternative recipient shall be for the rest of her life, subject to the terms and conditions of said Retirement Plan. . . . E. It is the intention of this Court to create a duly qualified domestic order and the Court retains jurisdiction to do any and all t hings necessary to enforce its order and intent to provide Plaintiff, ARLENE MARSHALL, with [$338.60] per month of the Defendant’s retirement benefits with the Federal Civil Service Retirement System as heretofore set forth, pursuant to the Pension Reform Act of 1984, effective January 1, 1985, and pursuant to law. . . . G. The Defendant, PAUL MARSHALL, has remarried as evidence d by the marriage license attached hereto as Exhibit B. Defendant’s spouse, MARTHA MARSHALL, may be named by Defendant, PAUL MA RSHALL, as his surviving spouse for all pension and retirement benefits available to a surviving spouse except for those 5 benefits allocated to the Plaintiff, ARLENE MARSHALL, as set forth in Paragraph 1 of this Journal Entry. H. The Court has considered t he requirements and standard terminology provided in Part 838 of Title 5, Code of Federal Regulations. The terminology used in the provisions of this Order that concern benefits under the Civil Service Retirement System are governed by the standard conven tions established by that part. ¶5 On remand, the administrative judge adopted the Board’s prior findings that the 1987 QDRO failed to provide the appellant with a former spouse survivor annuity. Arlene Smith In re Paul D. Marshal l v. Office of Personnel Management , MSPB Docket No. AT -0831 -10-0059 -M-1, Appeal File , Tab 17, Initial Decision (ID) at 3. The administrative judge further found that the 1999 order did not expressly provide the appellant a former spouse survivor annuity . ID at 4 -8. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has opposed the appellant’s petition. PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 The appellant bears the burden of proving her entitlement to a survivor annu ity by preponderant evidence. Cheeseman v. Office of Personnel Management , 791 F.2d 138 , 141 (Fed. Cir. 1986); Gilliam v. Office of Personnel Man agement , 91 M.S.P.R. 352 , ¶ 9 (2002) ; 5 C.F.R. § 1201.56 (b)(2)(ii). Under the Civil Service Retirement Spouse Equity Act of 1984 , the divorced spouse of a retired F ederal employee is entitled to a survivor annuity if the employee has elected a survivor annuity under 5 U.S.C. § 8339 (j)(3), or a survivor annuity has been expressly provided for in a divorce decree or a court order or court -approved property settlement agreement issued in conjunction with a divorce decree . See 5 U.S.C. § 8341 (h)(1) ; Warren v. Office of Personnel Management , 407 F.3d 1309 , 1313 (Fed. Cir. 2005). The Board ha s held that t he expressly provided for provision does not require “magic words,” but only that the intent to provide the survivor annuity be clear, definite, explicit, plain, direct, and unmistakable, not 6 dubious or amb iguous. Thomas v. Office of Personne l Management , 46 M.S.P.R. 651, 654 (1991). The interpretation of what is expressly provided for in a court order or court -approved prop erty settlement agreement incident to a decree of divorce must be made on a case -by-case basis. See Hahn v. Office of Personnel Management , 71 M.S.P.R. 154 , 156 (1996). ¶7 The administrative judge found that the language in the 1999 order failed to award the appellant a survivor annuity because it did not use terms sufficient to identify an entitlement to a survivor annuity, such as surv ivor annuity, death benefits, or former spouse survivor annuity . ID at 7. She further found that paragraph 7(G) did not clearly award a survivor annuity because it referenced paragraph 1 , which provided the appellant with a portion of her former spouse’s annuity while he was alive. ID at 8 . We disagree. ¶8 We conclude that the unmistakable intent of paragraphs 7(B) and (C) of the 1987 QDRO as modified by the 1999 order was to provide the appellant a lifetime monthly benefit of $338.60. Such paragraphs , when read in conjunction with paragraph 7(G), which provides that the appellant’s former husband could name his current spouse as a surviving spouse for all retirement benefits available to a surviving spouse except for those benefits allocated to the appell ant, demonstrate a clear intent that the appellant continue to receive benefits following the dea th of her former spouse. Such benefits would constitute a survivor annuity. Thus, we find that the 1987 QDRO as modified by the 1999 order expressly provided the appellant with a survivor annuity in the amount of $338.60 per month . See, e.g. , Bliznik v. Office of Personnel Management , 58 M.S.P.R. 340 , 344 (1993) ( finding that a divorce decree expressly provided for a survivor annuity when a survivor annuity was the only payment that would provide the appellant with the “lifetime benefit” to which she was entitled by the divorce decree ). ¶9 The administrative judge found that while she believed that the parties intended to provide the appellant with a survivor annuity, the 1999 order failed to do so because, among other things, it failed to comply with OPM’s regulations. 7 ID at 7-8. In particul ar, 5 C.F.R. § 838. 803(b), which provides that a ny court order that provides that the former spouse’ s portion of the employee annuity shall continue after the death of the employee or re tiree, such as a court order providing that the former sp ouse’ s portion of the employee annuity will continue for the lifetime of the former spouse, but does not use terms such a s survivor annuity, death benefits, former spouse annuity , or similar terms is not a court order acceptable for processing. ID at 8. 5 C.F.R. § 838.302 (b) contains similar language regarding orders awarding an annuity to a former spouse during the Federal employ ee’s life , and states that court orders that provide that a former spouse’s portion of the employee annuity will continue for the lifetime of the former spouse are not court orders acceptable for processing. ¶10 Both 5 C.F.R. § 838.302 and 5 C.F.R. § 838.803 apply to court orders received by OPM on or after January 1, 1993. 5 C.F.R. § 838.101 (c)(1) . Thus, they would apply to the 1999 order, but not the 1987 order. The language pertaining to the lifetime benefits was set forth in the 1987 order and remained unchanged by the 1999 modifications. However, even assuming the regulations apply, the Board has cautioned against a rigid application of 5 C.F.R. § 838.302 (or section 838.803) t hat “ ‘frustrate[s] the language and intent of 5 U.S.C. § 8341 (h).’ ” Arnold v. Office of Personnel Management , 94 M.S.P.R. 86, ¶ 16 (2003) (quoting Hunt v. Office of Personnel Management , 89 M.S.P.R. 449 , ¶ 12 (2001 )). The purpose of the regulations is to preserve OPM’ s ministerial function, assuring that OPM will not have to interpret orders to ascertain the parties’ intent. Hunt , 89 M.S.P.R. 449 , ¶ 11; see 57 F ed. Reg. 33570, 33571 (1992). Thus, the Board has held that there is no rational reason to apply the regulation to deny a survivor annuity whe n the expressly provided requirement of the statute is met. Hunt , 89 M.S.P.R. 449 , ¶¶ 12-14. Here, we find that the parties’ intent to provide a survivor annuity is clear based on the express language of the or der. Therefore, we find that failure to follow precisely the requirements of the regulations does not bar the award of the survivor annuity. 8 ¶11 Accordingly, we find that the 1987 QDRO as modified by the 1999 court order provided the appellant a former spouse survivor annuity of $338.60 per month. We vacate the initial decision and reverse OPM’s reconsideration decision, which found that the appellant was not entitled to a former spouse survivor annuity. ORDER ¶12 We ORDER the Office of Personnel Management (OPM) to award the appellant former spouse survivor annuity benefits in accordance with the terms of the 1987 QDRO, as modified by the 1999 order. OPM must complete this action no later than 20 days after the date of this decision. ¶13 We also ORDER OPM to tell th e appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. We ORDER the appellant to provide all necessary information OPM requests to help it carry out the B oard’s Order. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b). ¶14 No later than 30 days after OPM tells the appellant it has fully carried o ut the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on this appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reas ons 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). NOT ICE TO THE APPELLANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS ¶15 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 9 regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must f ile a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS2 You may obtain r eview of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your sit uation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your cl aims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order 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. 10 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for t he Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by an y attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appro priate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Prot ection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 11 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be enti tled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respec tive websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employmen t Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 12 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclos ures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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.go v. Of particular relevance is the court’s “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 C ircuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SMITH_IN_RE_PAUL_D_MARSHAL_ARLENE_AT_0831_10_0059_M_1_FINAL_ORDER_1924794.pdf	2022-05-16	null	AT-0831	NP
4,403	https://www.mspb.gov/decisions/nonprecedential/MIZELL_RICKY_AT_831E_17_0218_I_1_FINAL_ORDER_1924799.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RICKY MIZELL, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-831E -17-0218 -I-1 DATE: May 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ricky Mizell , Miami, Florida, pro se. Carl E. Hobbs, II and Linnette L. Scott , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a peti tion for review of the initial decision, which affirmed the decision of the Office of Personnel Management to disallow his disability retirement application on the basis that it was untimely filed. Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On review, the appellant submitted additional e vidence , in the form of certificates showing that he participated in a substance abuse treatment program, in support of his argument that the application deadline should be waived because he was mentally incompetent. Petition for Review File, Tab 1. He h as not shown that this evidence was unavailable, despite his due diligence, before the record closed. See Hodges v. Office of Personnel Management , 101 M.S.P.R. 212 , ¶ 7 (2006); 5 C.F.R. § 1201.115 (d). In any event, the information in these certificates is not of sufficient weight to change the administrative judge ’s finding regarding his mental competence during the relevant period. 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 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 3 review and the 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 o f your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discri mination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . 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 5 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC 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 (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 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 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 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. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510 . 7 Contact informatio n for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MIZELL_RICKY_AT_831E_17_0218_I_1_FINAL_ORDER_1924799.pdf	2022-05-16	null	AT-831E	NP
4,404	https://www.mspb.gov/decisions/nonprecedential/BRYARS_KEVIN_R_DA_315I_18_0065_I_1_FINAL_ORDER_1924807.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KEVIN R. BRYARS, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER DA-315I -18-0065 -I-1 DATE: May 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin R. Bryars , Moore, Oklahoma, pro se. Telin W . Ozier , Tinker Air Force Base , Oklahoma, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition f or review of the initia l decision, which dismissed his appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On review, the appellant first asserts that the agency’s decision to demote him 4 months into his supervisory probationary period was procedurally deficient and that the agency failed to train him properly during the probationary period . Petition for Review (PFR) File, Tab 1 at 4 .2 For the reasons set forth in the initial decision, we agree with the administrative judge that the Board lacks jurisdiction over this appeal . Initial Appeal File (IAF), Tab 10, Initial Decision (ID) at 2-5. Absent an otherwise appealable action, the Board cannot adjudi cate claims of harmful procedural error or prohibited personnel practices. See Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012). ¶3 The appellant also asserts that the agency demoted him during his supervisory probationary period in retaliation for whistleblowing. PFR File, Tab 1 at 4. Although the appellant’s filings were generally vague and lacked 2 The appellant attaches a number of documents to his petition for review. PFR File, Tab 1 at 5 -11. Under 5 C.F.R. § 1201.115 , the Board will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). The appellant has not described why he could not provide these documents to the administrative judge, and we find that they are immateria l to the dispositive issue of the Board’s jurisdiction over his appeal. Some of the documents are already part of the record below and do not constitute new evidence . See Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980). 3 detailed arguments a bout retaliation, IAF, Tab s 1, 6, he clearly and explicitly asserted whistleblower retaliation in his supplemental filing before the administrative judge issued the initial decisio n, IAF , Tab 9 at 3. The administrative judge never apprised the ap pellant o f the burden of proof to establish jurisdiction in an individual right of action (IRA) appeal , including the requirement to exhaust administrative remedies with the Office of Special Counsel (OSC) , prior to issuing the initial decision nor in the initial d ecision itself . IAF, Ta bs 2-3; ID at 2 -5; see Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) (explaining that an appellant must receive explicit information on what is required to establish Board jurisdiction before dismissing a claim for lack of jurisdiction); see also Washington v. Department of the Navy , 75 M.S.P.R. 150, 153 -54 (1997) (finding that, although the jurisdictional notice was adequate at the time it was issued, the admi nistrative judge should have afforded the appellant further jurisdictional notice when the parties filed evidence and argument implicating further jurisdictional issues). ¶4 Under the circumstances of this case, however, we find that any lack of notice was harmless and did not affect the appellant’s substantive rights. The undisputed record evidence shows , and the appellant certified under penalty of perjury, that he did not file any complaint w ith OSC , which is a prerequisite to filing an IRA appeal with the Board . IAF, Tab 1, Tab 9 at 4; PFR File, Tab 1; see Flores v. Department of the Army , 98 M.S.P.R. 427, ¶¶ 8-9 (2005) . Thus, the Board lacks jurisdiction over this appeal as an IRA appeal . See Flores , 98 M.S.P.R. 427 , ¶¶ 8 -9; see also Hudson v. Office of Perso nnel Management , 114 M.S.P.R. 669, ¶ 11 (2010) (finding that the lack of jurisdictional notice did not affect the appellant’s substant ive rights because the Board clearly lacked jurisdiction over the appeal) . Moreover, a different administrative judge in the appellant’s second demotion appeal specifically apprised him of IRA appeal jurisdictional requirements before dismissing that appe al for adjudicatory efficiency and noted that the appellant certified under penalty of perjury that he 4 had not filed any complaint with OSC . Bryars v. Department of the Air Force , MSPB Docket No. DA -315I -18-0179 -I-1, Initial Decision at 3 n.1 (Feb. 22, 2018). Thus, the record in that appeal further supports our finding that the appellant has not exhausted his administrative remedies with OSC and a remand in this appeal would be futile. See Hudson , 114 M.S.P.R. 669, ¶ 11. Nothing prevents the appellant from timely filing an IRA appeal with the Board after exhausting his administrative remedies with OSC . 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 f ile. 5 U.S.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 f or 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 o f review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notic e, the Board cannot advise which option is most appropriate in any matter. 5 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 6 representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 7 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circ uit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	BRYARS_KEVIN_R_DA_315I_18_0065_I_1_FINAL_ORDER_1924807.pdf	2022-05-16	null	DA-315I	NP
4,405	https://www.mspb.gov/decisions/nonprecedential/TYSON_SYNGE_DENISE_DC_0752_14_0446_A_1_REMAND_ORDER_1924890.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SYNGE DENISE TYSON, Appellant, v. DEPARTMENT OF COMMER CE, Agency. DOCKET NUMBER DC-0752 -14-0446 -A-1 DATE: May 16, 2022 THIS ORDER IS NONPRECEDENTIAL1 Laura E. Varela -Addeo , Silver Spring, Maryland, for the appellant. Adam Chandler , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a pe tition for review of the addendum initial decision, which denied her request for attorneys’ fees and costs . For the reasons discussed below, we GRANT the appellant’s petition for review , VACATE the addendum initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The agency appointe d the appellant to the excepted -service position of Human Resources S pecialist on January 14, 2013. Tyson v. Department of Commerce , MSPB Docket No. DC -0752 -14-0446 -I-1, Initial Appeal File (IAF), Tab 4 at 58. Months later, the agency reassigned her to the excepted -service position of Reasonable Accommodation Coordinator. Id. at 55. On January 14, 2014, a year after her ini tial appointment, the agency terminated the appellant for deficient performance and unacceptable conduct. Id. at 50-51. The agency recorded the action as a probationary termination. Id. at 53. ¶3 The appellant filed a Board appeal alleging that she was no t a probationary employee when she was terminated because she previously was employed by the Department of Veterans Affairs and had no break in service between that position and her most recent position. IAF, Tab 1 at 6. The agency filed a motion to dism iss the appeal for lack of jurisdiction, asserting that the appellant was not an “employee” with Board appeal rights under 5 U.S.C. § 7511 because her previous position as a Blind Rehabilitation Sp ecialist was not the same or similar to the position from which she was terminated . IAF, Tab 4 at 5 -27. The appellant responded, arguing otherwise. IAF, Tab 5 at 4 -15. While the appeal was pending, the parties reached a settlement agreement concerning the appellant’s Board appeal and any other claims, including equal employment opportunity (EEO) claims. IAF, Tabs 20-21. The administrative judge entered the agreement into the record for enforcement purposes and dismissed the appeal as settled. IAF, Ta b 22, Initial Decision. ¶4 The appellant filed the instant motion for attorney s’ fees and costs totaling $102,154.86. Tyson v. Department of Commerce , MSPB Docket No. DC -0752 - 14-0446 -A-1, Attorney Fee File (AFF), Tab 1. In an addendum initial decision, the administrative judge denied the motion and awarded no fees. AFF, Tab 8, Addendum Initial Decision (AID). Although she found that the appellant was the prevailing party and had incurred attorney fees, AID at 4 -5, the administrative 3 judge concluded that f ees were not warranted in the interest of justice, AID at 5-6. The administrative judge also found that , even if fees were warranted in the interest of justice, the appellant did not meet her burden of showing that the fees requested were reasonable. AID at 6-8. The appellant has filed a petition for review of the addendum initial decision. Tyson v. Department of Commerce , MSPB Docket No. DC -0752 -14-0446 -A-1, Petition for Review ( PFR ) File, Tab 1. The agency has filed a response. PFR File, Tab 4. ¶5 Unli ke cases where a party asserts that it is entitled to an award of attorney fees under 5 U.S.C. § 7701 (g)(1),2 the parties in this case agreed to an award of attorney fees as part of their settlemen t agreement. IAF, Tab 20 at 7; AFF, Tab 1 at 17. The agreement provided as follows: ATTORNEYS’ FEES. The parties agree that Appellant shall file a petition for attorneys’ fees with the Administrative Judge with the MSPB assigned to this matter for all c laims related to this matter including Appellant’s EEO claim(s), and that the Agency shall file a response to said petition. The parties further agree that the Administrative Judge shall then determine “reasonable” attorneys’ fees in this matter. IAF, Tab 20 at 7; AFF, Tab 1 at 17. The plain language of the agreement did not provide for or even suggest that the administrative judge may altogether deny such fees because they were not in the interest of justice. See Martin v. Department of Justice , 99 M.S.P.R. 59 , ¶ 20 (2005) (recognizing that the centerpiece of the Board’s analysis in construing terms of a written settlement 2 To receive an award of attorney fees under 5 U.S.C. § 7701 (g)(1), an appellant must show that: (1) he was the prevailing party; (2) he incurred attorney fees pursuant to an existing attorney -client relationship; (3) an award of attorney fees is warranted in the interest of justice; and (4 ) the amount of attorney fees claimed is reasonable. See Caros v. Department of Homeland Security , 122 M.S.P.R. 231 , ¶ 5 (2015) . An award of attorney fees may be warranted under section 7701(g)(1) in the interest of justice when: (1) the agency engaged in a prohibited personnel practice; (2) the agency action clearly was without merit or wholly unfounded, or the employee was sub stantially innocent of the charges; (3) the agency initiated the action in bad faith; (4) the agency committed gross procedural error; or (5) the agency knew or should have known that it would not prevail on the merits. See Allen v. U.S. Postal Service , 2 M.S.P.R. 420 , 434 -35 (1980). 4 agreement is the plain language of the agreement), aff’d , 188 F. App’x 994 (Fed. Cir. 2006). In fact, although the agency’s response to the motion for fees cited the section 7701(g)(1) standard and disputed the reasonableness of the fees requested, the agenc y conceded that it “expects to pay a reasonable amount of attorney’s fees.” AFF, Tab 4 at 5. ¶6 Under these circumstances, it was improper for the administrative judge to consider the appellant’s motion for attorneys’ fees under section 7701(g)(1). See, e.g., Sherrell v. Department of the Navy , 92 M.S.P.R. 15 , ¶¶ 2, 4 (2002) (finding that an appellant did not have to satisfy the “prev ailing party” or “interest of justice” standards of section 7701(g)(1) when the entitlement to fees was based on a settlement agreement in which the agency agreed to pay “reasonable fees and costs”). Therefore, we find that remand is required for the admi nistrative judge to give full effect to the settlement agreement by determining what fees were reasonable.3 See Jones v. Department of Health & Human Services , 56 M.S.P.R. 311, 314 -15 (1993) (finding that an administrative judge should give full effect to a settlement agreement provision which indicated that the appellant was entitled to a reasonable amount of attorney fees as determined by the Board); see also Sowa v. Department of Veterans Affairs , 96 M.S.P.R. 408 , ¶ 11 (2004) (recognizing that an admin istrative judge is in the best position to evaluate attorney fee requests). ¶7 Aside from improperly considering the appellant’s motion for attorneys’ fees under section 7701(g)(1), the administrative judge indicated that fees associated with her EEO claims would not be recoverable at the Board unless those claims were inherently part of and contributed to the success of her Board appeal. AID at 7. We disagree. 3 We recognize that the administrative judge presented alternative findings, concluding that the fees requested were no t reasonable. AID at 6 -8. However, the administrative judge did not determine what amount of fees would be reasonable. 5 ¶8 After the administrative judge issued the addendum initial decision in this case, the Board, in Delorme v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 9-16 (2017), overturned prior precedent and found that the source of our authority to enforce settlement agreements is independent of the Board’s jurisdiction over the underlying matter appealed. We found that conclusion to be consistent with not only the law, but public policy considerations as well. Id., ¶¶ 17-21. For the same reasons, we find that the administrative judge in this case must determine what fees were reasonable under the terms of the settlement agreement, including those concerning the appellant’s related EEO claims. IAF, Tab 20 at 7. The Board’s enforc ement authority is not dependent on jurisdiction over the underlying matter. Therefore, the Board is not precluded from awarding reasonable fees associated with the appellant’s related EEO claims, pursuant to the plain terms of the parties’ settlement agr eement. ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	TYSON_SYNGE_DENISE_DC_0752_14_0446_A_1_REMAND_ORDER_1924890.pdf	2022-05-16	null	DC-0752	NP
4,406	https://www.mspb.gov/decisions/nonprecedential/CAMPBELL_BENJAMIN_E_AT_0752_15_0019_X_1_ORDER_1924901.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BENJAMIN E. CAMPBELL , Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER AT-0752 -15-0019 -X-1 DATE: May 16, 2022 THIS ORDER IS NONPRECEDENTIAL1 Christopher W. Waters , Birmingham, Alabama, for the appellant. Eric B. Fryda , Esquire, Dallas, Texas, for the agency. Margaret L. Baskette , Esquire, Tampa, Florida, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member ORDER ¶1 In a July 24, 2017 compliance initial decision, the administrative judge found the agency in partial noncompliance with the Board’s final decision in the underlying appeal to the extent it improperly placed the appellant on leave 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 without pay (LWOP) status during the interim relief period. Campbell v. U.S. Postal Service , MSPB Docket No. AT -0752 -15-0019 -C-1, Compliance File, Tab 12, Compliance Initial Decision (CID); Campbell v. U.S. Postal Service , MSPB Docket No. AT -0752 -15-0019 -I-1, Final Order (Sept. 9, 2016); Petition for Review File, Tab 8 . Accordingly, the administrative judge ordered the agency to pay the appellant back pay plus interest for time he was in LWOP status , from March 25 through September 9, 2016, and to provide him an explanation of its back pay and restored leave calculations. CID at 8. ¶2 On August 28, 2017, the agency informed the Board that it had taken the actions identified in the compliance initial decision. Campbell v. U.S. Postal Service , MSPB Docket No. AT -0752 -15-0019 -X-1, C ompliance Referral File (CRF), Ta b 1. As evidence of compliance, the agency provided , among other things , a sworn declaration from a Labor Relations Manager and that individual’s August 24, 2017 letter to the appellant setting forth the agency’s back pay and leave calculations . Id. at 15 -25. In particular, the declaration and letter reflect that the agency determined that there was insufficient documentation to substantiate the appellant’s placement on LWOP for 230.63 hours during the periods f rom March 26 through April 25, 2016, and from August 18 through September 9, 2016, and that it would therefore convert those 230.63 hours of LWOP to administrative leave and pay the appellant back pay with interest and credit him appropriate leave for thos e periods . Id. at 4-7, 15-17. Regarding the remainder of the interim relief period, from April 26 through August 1, 2016, the agency determined that the appellant was not entitled to back pay for the hours he was placed on LWOP because he had been medica lly unable to work and had used LWOP after exhausting his sick and annual leave. Id. at 8-9, 17 -19, 61 -74. In the August 24, 2017 letter, the Labor Relations Manager informed the appellant that , for the agency to process the back pay and credit the leave , he must complete and sign a Postal Service (PS) Form 8038 (“Employee Statement to Recover Back Pay”) and sign a PS Form 8039 (“Back Pay Decision/Settlement Worksheet”), 3 which the agency would provide to him for signature after completing it using the information from his completed PS Form 8038. Id. at 4-5, 11, 21, 23 -29. ¶3 The appellant responded to the agency’s submission on September 23, 2017 , stating that the agency had not spoken with him about the calculation of back pay, that he missed overtime pay during the LWOP period, and that he was currently repaying a debt for $4,282.54 in pay that he had erroneously received for the period in question. CRF, Tab 4. The appellant argued that he should receive back pay for 891.07 hours, as well as 251.82 hours of overtime pay, and be reimbursed for the debt he was paying to the agency. Id. at 2. ¶4 The agency responded on October 3, 2017, stating that it had no t paid the appellant his back pay because he had not filled out and signed the forms necessary to process the payment. CRF, Tab 5 at 6. The agency also stated that the documentation supplied by the appellant regarding overtime pay was not from the time p eriod at issue and that his claim about the debt owed to the agency was not properly raised in the compliance proceeding. Id. at 7. ¶5 The Board issued an order on February 2, 2018, directing the appellant to submit his arguments on the issue of the back p ay and interest dispute to the Board within 15 days. CRF, Tab 6. The order indicated that failure to do so might cause the Board to assume the appellant was satisfied and dismiss the petition for enforcement. Id. The appellant did not respond. ¶6 On Sep tember 21, 2021, the Board issued an order directing the agency to provide an update on its compliance with the Board’s final order. CRF, Tab 8. In particular, the Board ordered the agency to address whether it had received the completed and signed PS Fo rm 8038 and signed PS Form 8039 from the appellant and whether it had provided him the back pay and leave described in its prior submissions . Id. In the event that the appellant ha d not submitted a completed and signed PS Form 8038 and/or signed PS Form 8039, the Board directed the agency to explain whether and why the absence of such forms precludes it from providing the appellant the back pay and restored leave it has determined he is 4 entitled to, as described in its compliance submission. Id. The Board informed the appellant of his right to respond to the agency’s submission and that, if he did not respond, the Board might assume he was satisfied and dismiss the petition for enfo rcement . Id. ¶7 In an October 12, 2021 response, the agency informed the Board that the appellant has still failed to provide the completed and signed PS Form s 8038 and 8039 . CRF, Tab 9. The agency further stated that it cannot process the appellant’s bac k pay award as ordered by the Board’s final decision without these forms . Id. at 4. In support, the agency submitted a copy of Postal Service Management Instruction (PSMI) EL-430-2017 -6, which provides that the “hours calculation” method must be used whenever the back pay award calls for the employee to be “made whole.” Id. at 10. Pursuant to the PSMI, the “hours computation” method makes the employee whole by determining the appropriate back pay award based o n a hypothetical schedule that the employee would have worked but for the now -reversed personnel action and providing him all pay and employment -related benefits —such as sick and annual leave, health and life insurance, Thrift Savings Plan (TSP) participat ion, and retirement benefits —he would have received for that period. Id. The PSMI mandates that, for an “hours calculation” award to be authorized, the employee must complete and sign a PS Form 8038 and include all applicable information on mitigating da mages and/or receipt of unemployment compensation, voluntary refunds of retirement plan contributions, participation in the TSP and/or health insurance, and receipt of annuity payments from OPM. Id. at 20. As the appellant had refused to provide the docu mentation necessary for the processing of an “hours calculation” award, the agency requested that the Board order a lump sum back pay award instead, 5 which it could process without any additional action on the appellant’s part.2 Id. at 6-7. The appellant did not respond. ¶8 On December 2, 2021, the Board ordered the agency to provide the amount of the lump sum award the appellant would be entitled to receive based on the payment of 230.63 hours of administrative leave, plus interest, and restored leave. CRF , Tab 10 at 3. The Board again informed the appellant of his right to respond to the agency’s submission and that, if he did not respond, the Board might assume he was satisfied and dismiss the petition for enforcement. Id. at 3-4. ¶9 On January 31, 2022, the agency submitted its lump sum back pay calculation. CRF, Tab 11. The agency stated th at the appellant was entitled to back pay for 230.63 hours at a rate of $28.28 per hour for a total of $6,637.53. Id. at 4. The agency further stated that the conversion of the appellant’s LWOP to unpaid administrative leave was a mere characterization change and that there was no monetary value associated with it. Id. Finally, the agency stated that it believed the ap pellant was entitled to interest on the back pay award for the period through August 24, 2017, when he was originally notified of the calculations. Id. at 4-5. ¶10 On February 1, 2022, the appellant responded to the agency’s submission arguing that the 230 h ours of back pay was a “complete fabrication” but that he “no longer [has] any of this documentation.” CRF, Tab 12 at 3. He also stated that the agency failed to address the “4680.00 that was taken each year for the two years that [he ] worked when [he ] was reinstated to [his] job” or his request for overtime back pay . Id. ¶11 In light of the foregoing, w e find that the agency has provided the appellant with an accounting of the back pay owed to him . CRF, Tab 1. We further find 2 According to PSMI EL-430-2017 -6, a lump sum award is a single payment of a known amount of mo ney that does not include other employment -related benefits or affect the compensation history used by the Office of Personnel Management to calculate retirement annuities. CRF, Tab 9 at 10. 6 that the appellant waived h is challenge to the agency’s calculations when he failed to respond to the Board’s February 2, 2018 Order, and subsequent orders, instructing him to submit his arguments regarding back pay and interest. Even now, the appellant has provided no specific con tradiction of the agency’s accounting. We therefore adopt the agency’s calculations. ¶12 In addition, we find that the appellant’s refusal to complete , sign, and return the required PS Form 3083 has precluded the agency from processing his back pay award. The record reflects that , by letter dated August 24, 2017, the agency instructed the appellant that he must complete and sign the form before the agency could process his back pay award and provided him a copy of the form . CRF, Tab 1 at 21, 23-31. Moreover, during this compliance referral proceeding, the agency’s submissions and the Board’s orders have repeatedly reiterated the requirement that the appellant must submit the form before the agency could process his back pay award. CRF, Tabs 1, 5, 8 -10. Nonetheless, as of present date, he has failed to return the completed form to the agency . When an appellant does not cooperate with an agency’s efforts to achieve compliance, the Board may deny his petition for enforcement . See Coe v. U.S. Postal S ervice , 101 M.S.P.R. 575, ¶¶ 13 -14, aff’d , 208 F. App’x 932 (Fed. Cir. 2006) . Nonetheless, under the unique circumstances here, includin g the agency’s commendable efforts to pay the appellant despite his failure to cooperate, we find it appropriate to order the agency to pay the appellant a lump sum back pay award to compensate him for the 230.63 hours for which he was improperly placed on LWOP status during the periods from March 26 through April 25, 2016, and from August 18 through September 9, 2016 . Accordingly, we find that the appellant is entitled to a total of $6,637.53 plus interest through August 24, 2017, when he was notified of the back pay calculations and instructed to submit the completed PS Form 8038 . CRF, Tab 11 at 4. We further agree that the appellant is not entitled to interest after August 24, 2017, as his failure to cooperate with the agency’s efforts to 7 achieve compl iance since that date has caused the delay. CRF, Tab 1 at 21, 23 - 31. ¶13 We ORDER the agency to pay the appellant a lump sum back pay award of $6,637.53 plus interest calculated from the date of accrual through August 24, 2017. Within 21 days from the date of this Order, t he agency must provide evidence to the Board that it has completed this action . ¶14 The appellant may submit a reply to the agency’s evidence of compliance with this Order within 21 days of the date of service of the agency’s submission. Any such reply must be limited to the following issues: (1) whether the agency timely paid the principal amount of $6,637.53; (2) the agency’s interest calculation, from the date of accrual through August 24, 2017; and (3) whether the agency timely paid the interest amount. If the appellant does not respond to the agency’s submission within 21 days, the Board may assume that the appellant is satisfied and dismiss the petition for enforcement. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CAMPBELL_BENJAMIN_E_AT_0752_15_0019_X_1_ORDER_1924901.pdf	2022-05-16	null	AT-0752	NP
4,407	https://www.mspb.gov/decisions/nonprecedential/KING_RANDY_AT_315H_17_0383_I_1_REMAND_ORDER_1924918.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RANDY KING, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER AT-315H -17-0383 -I-1 DATE: May 16, 2022 THIS ORDER IS NONPRECEDENTIAL1 Randy King , Glennville, Georgia, pro se. Gerald L. Gilliard , Esquire, Joint Base Andrews, Maryland, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his termination appeal f or lack of jurisdiction . For the reasons discussed below, we GRANT the appellant’s petition for rev iew, VACATE the initial decision, and REMAND the case to the regional office for further adjudication in acc ordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has b een identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 Effec tive March 7, 2016, the agency appointed the appellant to an Equal Employment Manager position in the competitive service. Initial Appeal File (IAF), Tab 5 at 43 -44. The Standard Form 50 (SF-50) documenting the appellant’s appointment characterizes the a ction as “Reinstatement Career” and cites reinstatement authority under 5 C.F.R. § 315.401 . Id. The SF -50 also indicates that his appointment was subject to the completion of a 1 -year initial probationary period beginning on March 7, 2016 . Id. at 43. Effective March 3, 2017, prior to the completion of the 1 -year period, the agency terminated the appellant for allegedly failing to demonstrate his fitness or qualifications for continued employment.2 Id. at 20 -23, 30 -31. ¶3 The appellant appealed his termination to the Board, and he did not request a hearing. IAF, Tab 1 at 1 -16. In a Jurisdiction Order, the administrative judge informed the appellant that the Board may not have jurisdicti on over his appeal, apprised him of his burden of proving jurisdiction over a probationary termination appeal, and ordered him to file evidence or argument on the jurisdictional issue. IAF, Tab 3. The appellant did not respond. ¶4 Based on the written rec ord, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 6, Initial Decision (ID) at 1, 3. Specifically, she found that the appellant did not dispute that he was terminated during a probationary pe riod. ID at 2. She further found that the record reflects that the appellant was not terminated for any preappointment reason, and she noted that he did not raise claims of discrimination based on marital status or partisan politics. ID at 2 -3. In addi tion, the administrative judge stated that, to the extent the appellant is alleging whistleblower reprisal, he first must exhaust his remedies with the Office of 2 The SF -50 documenting the appellant’s termination cites the legal autho rity under 5 C.F.R. § 315.804 . IAF, Tab 5 at 20. 3 Special Counsel before the Board may exercise jurisdiction over any such reprisal claims throu gh an individual right of action appeal. ID at 3. ¶5 The appellant has filed a petition for review challenging the administrative judge’s jurisdictional findings. Petition for Review (PFR) File, Tab 1. The agency has filed a response, to which the appellan t has replied. PFR File, Tabs 3‑4. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). An appellant bears the burden of proving the Board’s jurisdiction by preponderant evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). Generally, if an appellant makes a nonfrivolous allegation3 that the Board has jurisdiction over his appeal, he is entitled to a hearing on the jurisdictional question. Henderson v. Department of the Treasury , 114 M.S.P.R. 149 , ¶ 8 (2010). ¶7 The Board lacks jurisdiction under 5 U.S.C. chapter 43 over a performance ‑based “removal of an employee in the competitive service who is serving a probationary or trial period under an initial appointment or who has not completed 1 year of current continuous employment under other than a temporary appointment limited to 1 year or le ss.” 5 U.S.C. § 4303 (f)(2). To establish Board jurisdiction under 5 U.S.C. chapter 75 over an adverse action, an individual must, among other things, show that he satisfies one of the definition s of “employee” in 5 U.S.C. § 7511 (a)(1). 5 U.S.C. § 7513 (d); Walker v. Department of the Army , 119 M.S.P.R. 391 , ¶ 5 (2013). For an individual in the competitive service, like the appellant, this means that he either must not be serving a probationary or trial period under an initial appointment or , except as provided in section 1599e of 3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4 (s). 4 title 10,4 have completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less . 5 U.S.C. § 7511 (a)(1)(A )(i)-(ii); see Walker , 119 M.S.P.R. 391 , ¶ 5. Under 5 C.F.R. § 315.806 , an individual in the competitive service ha s the limited right to appeal a termination during a probationary period to the Board when the agency action was based on partisan political reasons or marital status , or was based (in whole or part) on preappointment reasons and the agency did not follow the procedures of 5 C.F.R. § 315.805 . See Walker , 119 M.S.P.R. 391 , ¶ 5. ¶8 For the first time on review , the appellant raises a claim of discrimination based on partisan political reasons . PFR File, T ab 1 at 5, Tab 4 at 8. 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 asserts that he did not respond to the administrative judge ’s Jurisd iction Order because he has had problems with the Board’s e -Appeal system. PFR File, Tab 1 at 4, Tab 4 at 6. He does not allege that he did not receive the Jurisdiction Order or that he attempted to file a response. We find that the appellant’s nonspeci fic claim of e-Appeal problems is not an adequate reason to consider his new argument. Nevertheless, we find that the appellant has failed to make a nonfrivolous allegation that his termination was based on his affiliation with any political party or cand idate. See Marynowski v. Department of the Navy , 118 M.S.P.R. 321 , ¶ 7 4 Section 1105 of the National Defense Authorization Act for Fiscal Year 2016 (NDAA), Pub. L. No. 114-92, 129 Stat. 726, 1023 -24 (enacted on November 25, 2015), amended the definition of “employee” set forth at 5 U.S.C. § 7511 (a)(1)(A)(ii) by adding an exception codified at 10 U.S.C. § 1599e . Section 1599e provides , among other thing s, that individuals appoi nted to a permanent , competitive -service position at the Department of Defense are subject to a 2 -year probationary period and only qualify as an “employee” under 5 U.S.C. § 7511 (a)(1)(A)(ii) if they have completed 2 years of current continuous service. 10 U.S.C. § 1599e (a), (b)(1)(A), (d). Here, because the appellant was appointed after the NDAA’s enactment , the amended definition of “employee” applies in this appeal. 5 (2012) (finding that the Board and its reviewing court ha ve held that discrimination based on “partisan political reasons” under 5 C.F.R. § 315.806 (b) means discrimination based on affiliation with any political party or candidate ). ¶9 In additio n, the appellant argues for the first time on review that he was appointed in 2016 by reinstatement with career status, and thus, he was not serving an initial appointment subject to a probationary period when the agency terminated him . PFR File, Tab 1 at 2. He further asserts that he has career tenure because he completed 12 years of continuous service, and he submits an SF -50 documenting his resignation, effective October 1, 1986, from a Contract Specialist position with the Department of the Army in th e competitive service .5 Id. at 2-3, 8. He also submits certification of his service in the armed forces and his service -connected disability. Id. at 10. ¶10 As discussed above, the appellant has failed to justify why he was unable to raise his new argumen ts before the administrative judge. Moreover, the appellant has not explained why the proffered evidence supporting his new reinstatement argument was unavailable before the record closed. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (finding that the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it wa s unavailable before the record was closed despite the party’s due diligence). However, we find that this jurisdictional issue was apparent on the record as it existed before the administrative judge, in particular the agency’s submission of the SF -50 doc umenting his 2016 appointment. IAF, Tab 5 at 43‑44. T he issue of the Board’s jurisdiction is always before the Board and may be raised by either party or sua sponte by the Board at any time during a Board proceeding. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313 , ¶ 5 (2010) ; see Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 678 5 The SF -50 indicates that his service computation date was May 22, 1973. PFR File, Tab 1 at 8. 6 (1991) (finding that the administrative judge did not err by addressing sua sponte the jurisdictional issue of whether the appellant was a probationary employee) . Thus, we will consider the appellant’s reinstateme nt argument. For the following reasons, we find that the appellant has made a nonfrivolous allegation of jurisdiction. ¶11 Pursuant to 5 C.F.R. § 315.401 , an agency has the authority to app oint by reinstatement to a competitive -service position an individual who previously was employed under a career or career -conditional appointment.6 There is no time limit on the reinstatement eligibility of a preference eligible or an individual who comp leted the service requirement for career tenure. 5 C.F.R. § 315.401 (b). Under 5 C.F.R. § 315.801 (a)(2), the first year of service of an employee who is given a career or career -conditional appointment in the competitive service is a probationary period when the employee was reinstated under subpart D ( 5 C.F.R. § 315.401 ), “unless during any period of service which affords a current basis for reinstatement, the employee completed a probationary period or served with competitive status under an appointment which did not require a probationary period.” If an employee’s appointment was a reinstatement that meets the criteria of 5 C.F.R. § 315.801 (a)(2), then he was not required to complete a probationary period under that section, and thus, he may be an “employee” with adverse -action appeal rights under 5 U.S.C. § 7511 (a)(1)(A)(i). See Abdullah v. Department of the Treasury , 113 M.S.P.R. 99 , ¶¶ 11-14 (2009) (remanding a termination appeal to determine whether the appellant was a statutory employee under 5 U.S.C. § 7511 (a)(1)(A)(i) because he was appointed by reinstatement and was not required to complete a probationary period under 5 C.F.R. § 315.801 (a)(2) ). 6 A “r einstatement” is defined as “the noncompetitive reemployment for service as a career or career -conditional employee of a person formerly employed in the competitive service who had a competitive status or was serving probation when he was separated from th e service.” 5 C.F.R. § 210.102 (b)(15) . 7 ¶12 Here, the SF -50 do cumenting the appellant’s 2016 appointment indicates that he was reinstated with career status pursuant to 5 C.F.R. § 315.401 . IAF, Tab 5 at 43 -44. Although “the SF -50 is not a legally operative document controlling on its face an employee’s status and rights,” it still can be considered as evidence when determining the nature of an action. Grigsby v. Department of Commerce , 729 F.2d 772 , 776 (Fed. Cir. 1984). Further, there is nothing in the record before the administrative judge to suggest that there is a time limit on the appellant’s reinstatement eligibility. In particular , under 5 C.F.R. § 315.401 (b), there is no time limit on his reinstatement eligibility if he is a preference eligible, as indicated on his initial appeal form. IAF, Tab 1 at 1. Thus, w e find that the appellant has made a nonfrivolous allegation that he was reinstated pursuant to 5 C.F.R. § 315.401 , was not required to complete a probationary period under 5 C.F.R. § 315.801 (a)(2), and is an “employee” under 5 U.S.C. § 7511 (a)(1)(A)(i). ¶13 Based on the foregoing, we remand this appeal for the adm inistrative judge to allow the parties to address the jurisdictional issues described above. In particular, the administrative judge should afford the parties an opportunity to submit evidence and argument regarding the nature of the appellant’s appointme nt with the agency, what prior appointment(s) served as a basis for his reinstatement, and whether, during the prior appointment(s), he completed a probationary period or was not required to serve one.7 In addition, the parties should address whether the appellant is an individual covered under 10 U.S.C. § 1599e and what effect, if any, such statutory provision has on the jurisdictional analysis. ¶14 Because we are remanding this appeal for purposes of jurisdiction, we decline to address the appellant’s additional arguments and evidence on the merits of his termination, including his claims regarding due process, retaliation, 7 The appellant may resubmit the evidence that he has provided on review regarding his reinstatement argument. 8 prohibited personnel practices, and damages. PFR File, Tabs 1, 4. He may present such arguments and evidence again if, on remand, the administrative judge finds that the Board has jurisdiction over this appeal. ORDER ¶15 For the reasons discussed above, we remand this case to the regional office for further adjudication in accordan ce with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	KING_RANDY_AT_315H_17_0383_I_1_REMAND_ORDER_1924918.pdf	2022-05-16	null	AT-315H	NP
4,408	https://www.mspb.gov/decisions/nonprecedential/NEWTON_ROBERT_DC_0752_15_0300_B_1_REMAND_ORDER_1924978.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROBERT NEWTON, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER DC-0752 -15-0300 -B-1 DATE: May 16, 2022 THIS ORDER IS NONPRECEDENTIAL1 Debra D’ Agostino , Esquire , Washington, D.C., for t he appellant. Eva M. Clements and Joseph Moore , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 The appellant was formerly employed by th e agency as an Auditor until he resigned on August 6, 2012.2 Newton v. Department of the Navy , MSPB Docket No. DC-0752 -15-0300 -I-1, Initial Appeal File (IAF), Tab 1 at 6. On October 1, 2012, he filed a formal equal employment opportunity (EEO) complaint of discrimination alleging that the agency had subjected him to a hostile work environment that led to his involuntary resignation by, among other things, implanting radio frequency identification devices (RFIDs) on his body without his consent to track, f ollow, and harass him. IAF, Tab 4 at 33, 38. On September 25, 2014, the agency issued a final agency decision (FAD) finding no merit to the appellant’s discrimination claims. Id. at 33-47. On December 30, 2014, the appellant filed a Board appeal allegi ng that his resignation was involuntary. IAF, Tab 1. The appellant appeared to indicate that he was also alleging whistleblower reprisal, violation of veterans’ preference rights under the Veterans Employment Opportunity Act of 1998 (VEOA), and a denial of a within -grade increase (WIGI). Id. at 3-4, 12 -35. ¶3 The administrative judge found that the appellant’s claims concerning the agency’s alleged nonconsensual implanting of the RFIDs previously had been raised in a prior appeal and issued an initial dec ision dismissing the appeal as barred by collateral estoppel. IAF, Tab 13 , Initial Decision . The appellant filed a petition for review, which the Board granted. Newton v. Department of the Navy , MSPB Docket No. DC-0752 -15-0300 -I-1, Remand Order (Nov. 10 , 2015). The Board remanded the appeal to provide the appellant with proper notice of his burdens of proof regarding his whistleblower reprisal, VEOA, and WIGI denial claims. Id., ¶¶ 8-11, 14 -15. The Board noted that the appellant’s alleged involuntary resignation and WIGI denial claims did not appear to be barred by 2 The appellant’s Standard Form 50 indicates that he resigned; however, in his pleadings, he refers to both his involuntary resignation and involuntary reti rement. Newton v. Department of the Navy , MSPB Docket No. DC -0752 -15-0300 -B-1, Remand File, Tab 8 at 4. 3 collateral estoppel. Id., ¶ 17. The Board instructed the administrative judge to, among other things, revisit the issue of preclusion and address whether the appellant’s involuntary resign ation appeal of the FAD was timely filed. Id., ¶¶ 17, 20. ¶4 On remand, the administrative judge issued an initial decision, dismissing the appellant’s alleged involuntary resignation appeal for lack of jurisdiction.3 Newton v. Department of the Navy , MSP B Docket No. DC -0752 -15-0300 -B-1, Remand File ( RF), Tab 53, Remand Initial Decision (RID).4 The administrative judge found that the agency had dismissed the appellant’s EEO complaint, including his involuntary resignation claim, as untimely filed and that the Board lacks jurisdiction to review an agency’s dismissal of an EEO complaint as untimely. RID at 2 -3. ¶5 On review, the appellant contends that the administrative judge improperly found that the agency dismissed his involuntary resignation claim as un timely. MSPB Docket No. DC -0752 -15-0300 -B-1, Remand Petition for Review File, Tab 4. We agree. Although the FAD indicates that the agency dismissed certain claims as untimely, such claims did not include the appellant’s involuntary resignation claim. I AF, Tab 4 at 33. Rather, the agency investigated this claim and issued a FAD finding that the appellant failed to establish that he was forced to resign due to intolerable working conditions.5 Id. at 45. 3 It is somewhat unclear whether the appeal was dismissed as untimely or for lack of jurisdiction. RID at 1, 3. 4 The administrative judge separately docketed the appellant’s whistleblower reprisal, VEOA, and WIGI denial appeals. Newton v. Department of the Navy , MSPB Docket Nos. DC -1221 -16-0700 -W-1, DC -0330 -16-0702 -I-1, and DC -531D -16-0701 -I-1. 5 The agency initially dismissed the appellant’s involunt ary resignation claim for failure to state a claim; however, the U.S. Equal Employment Opportunity Commission (EEOC) reversed the agency’s decision and remanded the claim to the agency for investigation. IAF, Tab 4 at 17 -21. The EEOC subsequently denied the agency’s request for reconsideration of this decision. Id. at 23 -26. 4 ¶6 Because the administrative judge found that the agency dismissed the appellant’s involuntary resignation claim as untimely, he did not reach the issue of whether the appellant’s Board appeal of the FAD was timely filed. RID at 3 n.2. An employee who files a timely formal comp laint of discrimination wi th his employing agency regarding a matter that is within the Board’s jurisdiction may also file an appeal with the Board. For such an appeal to be considered timely, it must be filed within 30 days after the employee receives the FAD. 5 C.F.R. § 1201.154 (b)(1). The record reflects that the FAD , which contained notice of the appellant’s Board appeal rights, was delivered to the appellant’s post office box on September 29, 2014. IAF, Tab 4 at 33 -47, Tab 11 at 10 -11. Although the appellant contends that he was traveling and someone else may have signed for the FAD, IAF, Tab 47 at 4, we find that he constructively received the FAD on September 29, 2014, the date it was delivered to his post office box, see Little v. U.S. Postal Service , 124 M.S.P.R. 183 , ¶ 9 (2017); 5 C.F.R. § 1201.22 (b)(3). Thus, we find that his December 30, 2014 appeal was over 2 months untimely. ¶7 If an ap pellant fails to timely file his appeal, it will be dismissed as untimely filed absent a showing of good cause for the filing delay. 5 C.F.R. § 1201.22 (c). To establish good cause, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Marcantel v. Department of Energy , 121 M.S.P.R. 330 , ¶ 10 (2014). An appellant bears the burden of proof, by a preponderance of evidence, regarding the timeliness of his appeal. 5 C.F.R. § 1201.56 (b)(2)(i)(B). The Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly sho ws a causal relationship to his inability to timely file his appeal. Marcantel , 121 M.S.P.R. 330 , ¶ 10. To establish that an untimely filing was the result of an illness, the party must (1) identify the time period during which he 5 suffered from the illness, (2) submit medical evidence showing that he suffered from the illness during that time period, and (3) explain how the ill ness prevented him from timely filing his appeal or a request for an extension of time. Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437 (1998). ¶8 The administrative judge issued a timeliness order informing the appellant of his burden of establishing good cause. RF, Tab 46. In response, the appellant submitted a declaration in which he asserted that good cause existed for hi s untimely filing because from September 30 to October 6, 2014, he was traveling to California for toxicological support and surgery consultation due to his symptoms related to the RFID implants, which he contends included burns to his head, neck, and body , unnatural scarring, ear pain and discharge, stiffness, body aches, high fever, coughing, sore throat, runny and stuffy nose, headaches, chills, muscle pains, feeling extremely tired, and weakness that was becoming debilitating. RF, Tab 47 at 16. He fur ther asserted that, while returning from traveling on October 6, 2014, he caught the flu, which exasperated his underlying symptoms and incapacitated him through December 29, 2014, and prevented him from timely filing his Board appeal. Id. ¶9 The appellant submitted a declaration from his physician, confirming that he treated the appellant for the flu during the relevant time, diagnosed him with failure to thrive, dehydration, influenza, and bronchitis, wrote him a script for an at home caregiver, and instr ucted him “to rest and not to do anything as the results could be fatal if [the appellant] was to be active.” Id. at 30. The record also includes an October 23, 2013 letter from this same physician verifying that the appellant “has RFID implants in the pharynx and larynx area” and stating that testing by another doctor revealed a “foreign body” in the appellant’s neck and that the appellant had been referred to a surgeon at Georgetown University 6 Hospital in Washington, D.C. to have the implants removed.6 RF, Tab 7 at 50. The appellant also submitted a declaration from an industrial toxicologist who confirmed that from October 6 to December 29, 2014, she provided toxicological support to the appellant’s physician and surgery consultation to the appellant due to his concerns about the symptoms he was suffering due to possible implantation of “biosensors” by the agency. RF, Tab 47 at 18 -19. Along with her declaration, she submitted a letter explaining the basis for her belief that the biosensors were impla nted in the appellant’s body by the agency at various times from February 1, 2010, to August 6, 2012. Id. at 21 -23. ¶10 We find that the appellant’s submissions establish a factual dispute as to whether he established good cause for his untimely filing due to his medical condition. However, we cannot determine from the medical evidence submitted whether the appellant’s medical condition impaired his ability to timely file his appeal. Although the appellant’s physician and industrial toxicologist declare that they instructed the appellant to rest and not do anything while he had the flu, they also indicate that this was because the results could be fatal if he were to be active. RF, Tab 47 at 18, 30. They do not, however, offer an opinion regarding the effec t of the appellant’s medical condition on his ability to timely file his Board appeal. The appellant also requested a hearing. IAF, Tab 1 at 2. Accordingly, we remand this appeal to the regional office to afford the appellant an opportunity to furnish a dditional evidence and a hearing, if one is required, on the timeliness issue. See, e.g., Braxton v. Department of the Treasury , 119 M.S.P.R. 157 , ¶ 11 (2013) (stating that, if an appellant can establish a factual dispute as to whether there is good cause for her untimely filing and she requested a hearing, she is entitled to a timeliness hearing); see also Sims v. 6 This letter is addressed to both the Board and the EEOC and requests an extension of the deadline due to the appellant’s health condition. It is unclear what deadline this letter is referring to because the letter is dated almost 1 year prior to the appellant’s receipt of the agency’s FAD on September 29, 2014. 7 Smithsonian Institut ion, 101 M.S.P.R. 311 , ¶ 10 (2006) (finding that the appellant’s claim that he was undergoing treatment for hepatitis C that caused flu-like symptoms, which was supported by medical opinion, was sufficient to establish a factual dispute as to whether he had good cause for his filing delay, and remanding for a timeliness hearing). If the administrative judge finds that the appellant has established good cause for his untimely filing, he shall determine whether the appellant has raised nonfrivolous allegations that his resignation was involuntary due to intolerable working conditions and, if so, hold the appellant’s requested hearing on th at issue. ORDER ¶11 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 Jennif er Everling Acting Clerk of the Board	NEWTON_ROBERT_DC_0752_15_0300_B_1_REMAND_ORDER_1924978.pdf	2022-05-16	null	DC-0752	NP
4,409	https://www.mspb.gov/decisions/nonprecedential/HALL_CHARLES_EDWARD_DC_315I_18_0140_I_1_FINAL_ORDER_1924982.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLES EDWARD HALL, II, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DC-315I -18-0140 -I-1 DATE: May 16, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 David A. Branch , Esquire, Washington, D.C., for the appellant. Sariana Garcia -Ocasio , Washington , D.C., for the agency. Celene Wislon , Bethesda , Maryland , for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his demotion appeal for lack of jurisdiction . On petition for review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the appellant argues that the Board has jurisdiction over his appeal because the agency failed to properly notify him of its decision to demote him from his supervisory position during his probationary period and that the agency demoted him in reprisal for whistleblowing. Petition for Review Fi le, Tab 1 at 5 -6. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the 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 re sulting 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 1201.11 5 (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 petiti on 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). However, we FORWARD the app ellant’s whistleblower reprisal claim to the regional office for docketing. ¶2 The administrative judge did not address the appellant’s whistleblower reprisal claim in the initial decision; we therefore consider it on review . The Board lacks jurisdiction over a whistleblower reprisal claim raised as an affirmative defense unless it is raised in connection with an otherwise appealable action. See Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (finding that prohibited personnel practices under 5 U.S.C. § 2302 (b) are not an independent source of Board jurisdict ion), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982) . The appellant has not shown that the Board has jurisdiction over his demotion for the reasons explained by the administrative judge, Initial Appeal File, Tab 10, Initial 3 Decision at 3-5, which we affirm above. Therefore, the Board lacks jurisdiction over the appellant’s whistleblower reprisal claims in the context of his demotion appeal. ¶3 Nevertheless, the Board may consider the appellant’s whistleblower reprisal claim in an individual right of action (IR A) appeal if he satisfies the jurisdictional requirements . See Neice v. Department of Homeland Security , 105 M.S.P.R. 211 , ¶¶ 13-14 (2007) (finding that, although the Board lacked jurisdiction over the appellant’ s resignation as an otherwise appealable action, it would consider any whistleblower reprisal claims in connection with that action that satisfied the jurisdictional requirements of an IRA appeal). The appellant is entitled to receive notice of his burden in an IRA appeal before it is dismissed for lack o f jurisdiction . See Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643-44 (Fed. Cir. 1985) (explaining that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue). Because the appellant did not receive that required notice, we forward his whistleblower reprisal claim to the Board’s Washington Regional Office for docketing as a n IRA appeal. Upon docketing, the administrative judge should notify the appellant of his burden and further adjudicate the IRA appeal as appropriate . See generally Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016) (setting forth the jurisdictional standard for an IRA appeal). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit 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 Systems Protection Board does not provide legal advice on which option is most appropriate for you r situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to yo ur claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of revi ew below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a ge neral rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this deci sion. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 5 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives th is decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, o r a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. 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, 6 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to yo u only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your 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. 7 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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. 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	HALL_CHARLES_EDWARD_DC_315I_18_0140_I_1_FINAL_ORDER_1924982.pdf	2022-05-16	null	DC-315I	NP
4,410	https://www.mspb.gov/decisions/nonprecedential/HAMILTON_WILLIE_R_DA_0754_15_0375_I_1_FINAL_ORDER_1924427.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILLIE R. HAMILTON, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DA-0754 -15-0375 -I-1 DATE: May 13, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 M. Jermaine Watson , Fort Worth , Texas, for the appellant. Yvette K. Bradley , Esquire, Dallas, Texas, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which reversed the agency’s suspension action and found that he was not entitled to back pay for the period of the suspension . For the reasons set forth below, we GRANT the petition fo r review and VACATE the initial decision with respect to the administrative judge’s finding that the appellant was not entitled to back pay . 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 BACKGROUND ¶2 The appellant is a preference -eligible veteran who serves as a Custodian at the agency’s Dallas Proces sing and Distribution Center. Initial Appeal File (IAF), Tab 4 at 29, 34 , Tab 7 at 13. The agency has employed the appellant since 2005. IAF, Tab 4 at 34. ¶3 On March 20, 2015, the appellant was assigned to scan mail, a duty outside of his custodial duti es, due to operational needs. IAF, Tab 11 at 55, 89. The appellant refused, stating that his back hurt and he could only perform custodial duties. Id. at 55. He was placed in a nonduty, non pay status for the rest of the evening and the following evening for failure to follow instructions . Id. at 89. The appellant was off from work for one or two additional nights and returned to duty on March 23 or March 24, 2015.2 Id.; Hearing Compact Disc (HCD) (testimony of the appellant). On March 25, 2015, the appellant submitted a light -duty request and medical documentation outlining restrictions on his ability to work; the agency denied his light -duty request on the basis that his limitations were too restrictive and sent him home. IA F, Tab 4 at 22 -23, Tab 11 at 61, 80‑81. On March 28, 2015, the appellant wrote to the agency and stated that he could perform his custodial duties but was unable to perform the duties of a clerk or mail handler. IAF, Tab 4 at 33. On April 16, 2015 , the agency held a light -duty committee meeting with the appellant and informed him that he could return to work if he submitted documentation stating he could perform his custodial duties within his medical restrictions. Id. at 25, 31. On April 22, 2015, the appellant submitted additional documentation, and the agency returned him to duty. Id. at 26; HCD (testimony of the appellant) . The following day, however, the agency determined that the most recent documentation did not alter the prior restrictions and the appellant could not perform his custodial tasks; the agency 2 The record is not clear as to whether the appellant returned to work on Monday, March 23, 2015, or Tuesday, March 24, 2015. 3 sent him home once more. IAF, Tab 11 at 17, 32; HCD (testimony of the appellant’s supervisor ). On June 24, 2015, the appellant provided medical documentation clearing him to return to full duty on June 25, 2015, and the agency returned him to work on June 25, 2015. IAF, Tab 11 at 15; HCD (testimony of the appellant’s supervisor). ¶4 On May 13, 2015, the appellant filed a Board appeal alleging that the agency placed him on enforced leave for m ore than 14 days when he refused to perform duties outside of his craft and provide d evidence to support his light -duty request but was not returned to work, which constituted an appealable suspension. IAF, Tab 1 at 11. The administrative judge issued an order directing the appellant to file evidence and/ or argument showing a nonfrivolous allegation that his claim was within the Board’s jurisdiction. IAF, Tab 6 at 4. ¶5 Following receipt of submissions regarding jurisdiction from each party, the administr ative judge ruled that the appellant had made a nonfrivolous allegation of jurisdiction and scheduled a hearing. IAF, Tab 9 at 1 -2. In her summary of the prehearing conference, the administrative judge set forth the following issues in dispute : (1) whet her the appellant’s absence from work was involuntary, and (2) whether there was available work within his restrictions, and if so, whether the agency offered him work and he refused it. IAF, Tab 12 at 1. Following the hearing, the administrative judge f ound that, beginning on March 25, 2015, the agency initiated the appellant’s absence from the workplace based on his medical restrictions and denied his requests to return to work with the exception o f allowing him to return to duty on April 22, 2015. IAF , Tab 14, Initial Decision (ID) at 4. The administrative judge held that the appellant’ s absence from March 25 through April 21, 2015 , and from April 23 through June 24, 2015 , was not voluntary and constituted an appealable suspension, and the agency fail ed to provide him with due process prior to the suspension; accordingly, she reversed the agency’s action. ID at 4, 6. The administrative judge also found that the 4 appellant was not able or available to perform his duties during the suspension period and thus was not entitled to back pay. ID at 5-6. ¶6 The appellant timely filed a petition for review in which he argued that the administrative judge erred in finding that he was not ready, willing, and able to work and thus was not entitled to back pay for the suspension period. Petition for Review (PFR) File, Tab 1 at 7 -8. He also argued that the administrative judge erred by not awarding him sick or annual leave. Id. at 9-10. The agency has opposed the petition for review, arguing that the administrati ve judge properly found the appellant was not ready, willing , and able to work and is not entitled to restoration of sick and annual leave. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge properly reversed the agency’s suspens ion action. ¶7 On review, neither party challenges the administrative judge’s reversal of the agency’s action.3 The administrative judge properly analyzed the appellant’s absence from March 25 through April 21, 2015 , and from April 23 through June 24, 2015, as an appealable suspension.4 ID at 4 ; see Abbott v. U.S. Postal 3 The administrative judge characterized the agency’ s suspension actions from March 25 through April 21, 2015, and from April 23 through June 24, 2015, as one action and did not address whether the actions could be considered two separate suspension periods. ID at 4. However, because both periods exceeded 14 -days and the agency initiated th e appellant’s absence during both periods, both periods constitute an appealable suspension, and we do not disturb the administrative judge’s findings on this issue. See Abbott v. U.S. Postal Service , 121 M.S.P.R. 294 , ¶ 10 (2014) (clarifying that an agency’s placement of an employee on enforced leave for more than 14 days constitutes an appealable suspension). 4 The administrative ju dge initially characterized the appellant’s absence as a constructive suspension. IAF, Tab 6 at 5, Tab 9 at 1, Tab 12 at 1 (setting forth the jurisdictional standard for a constructive suspension that an appellant must prove that he lacked a meaningful ch oice in the matter, and it was the agency’s wrongful actions that deprived him of that choice); Romero v. U.S. Postal Service , 121 M.S.P.R. 606 , ¶ 8 (2014) . As discussed below, the agency’s action was correctly characterized as the placement of the appellant on enforced leave because he never voluntarily absented himself from duty and his appeal did not concern a claim that leave that appeared to be voluntary actually was not. See Romero , 121 M.S.P.R. 606 , ¶ 7 (distinguishing a 5 Service , 121 M.S.P.R. 294 , ¶ 10 (2014) (finding that an agency’s p lacement of an employee on enforced leave for more than 14 days constitutes an appealable suspension within the Board’s jurisdiction ); see also Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 8 n.5 (2013) (noting the dispositive issue in an enforced leave appeal is whether the agency or the employee initiated the absence). The administrative judge also correctly found that the age ncy failed to provide the appellant with due process prior to imposing the suspension, warranting reversal. ID at 4; see Martin v. U.S. Postal Service , 123 M.S.P.R. 189 , ¶ 11 (2016 ) (holding that an agency is prohibited from placing an appellant on enforced leave for more than 14 days without providing the due process required under the Fifth Amendment); see also Cleveland Board of E ducation v. Loudermill , 470 U.S. 532, 546 -48 (1985) (holding that a tenured public employee is entitled to “notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story” prior to the deprivation of his property right to con tinued employment). Accordingly, we discern no reason to disturb the administrative judge’s decision to reverse the agency’s action. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v. De partment of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). constructive suspension from an appealable suspension). However, the administrative judge’s characterization did not prejudice the appellant because she applied the jurisdictional standar d applicable to enforced leave actions in her initial decision and put the appellant on notice in her order on jurisdiction and summary of the prehearing conference that the voluntariness of his absence was at issue. Scott v. Department of Justice , 105 M.S.P.R. 482 , ¶¶ 5-6 (2007). 6 The administrative judge prematurely found that the appella nt was not entitled to back pay. ¶8 In reversing the agency’s suspension action and finding that the appellant was not ready, willing , and able to work and thus not entitled to back pay , the administrative judge prematurely addressed a compliance issue in her initial decision. When the Board directs an agency to correct an unwarranted personnel action that resulted in the denial of pay otherwise due the appellant, the agency determines the amount of back pay he would have received had the action had not occur red, and the appellant may petition the Board for enforcement of the final decision if he believes that the agency is not in compliance with the decision. 5 C.F.R. §§ 550.805 (a); 1201.18 2(a). Given the administrative judge’s reversal of the agency’s suspension action, her findings regarding the appellant’s entitlement to back pay were premature prior to the appellant’s initiation of a compliance action.5 Cf. Jackson v. U.S. Postal Servi ce, 73 M.S.P.R. 512 , 517 n.6 (1997) (noting that proving an entitlement to back pay occurs at the compliance stage), rev’d in part on reopening , 79 M.S.P.R. 46 (1998). Accordingly, we vacate the administrative judge’s finding that the appellant was not ready, willing, and able to work and thus was not entitled to back pay, and we order the agency to determine the amount of back pay due the appellant and notify him when compliance is complete. 5 C.F.R. §§ 550.805 (a)(2); 1201.181(b). If the appellant believes that the agency has not fully complied with this Final Or der, he may petition the Board for enforcement in accordance with 5 C.F.R. § 1201.182 . 5 The administrative judge also did not provide the parties with notice that the issue of entitlement to back pay would be adjudicated ; thus, the parties were denied an opportunity to present evidence and argument regarding such an entitlement. See, e.g. , Burford v. U.S. Postal Service , 56 M.S.P.R. 460 , 464 (1993) (finding the administrative judge did not advise the appellant of his burden of proof and did not afford the parties an opportunity to fully develop the record regarding complia nce). 7 The appellant has not shown that he made a request for leave in connection with his appeal. ¶9 Final ly, as to the appellant’s argument that the administrative judge erred by not awarding him sick or annual leave , the record does not show, and the appellant has not alleged, that he made a request for sick or annual leave to the administrative judge or the agency.6 PFR File , Tab 1. Such a request is typically made to the agency. See 5 C.F.R. § 550.805 (d); Swafford v. Tennessee Valley Authority , 30 M.S.P.R. 130 , 134 n.4 (1986) ( analyzing a similar provision to 5 C.F.R. § 550.805 (d) that permits an agency to, upon the appellant’s request, provide a retroactive grant of sick leave). Accordingly, the appellant may make such a request of the agency in accordance with agency leave -requesting procedures. ORDER ¶10 We O RDER the agency to cancel the suspension action and retroactively place the appellant in pay status for the period from March 25 to April 21, 2015, and from April 23 to June 24, 2015 . 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. ¶11 We also ORDER the agency to pay the appellant t he correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service regulations, as appropriate, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good f aith 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 6 On review, the appellant did not articulate whether his request for leave was a request for the agency to credit him with the leave he would have accrued but for the unwarranted personnel action or to grant him available sick or annual leave for a period of incapacitation, both of which are contemplated under 5 C.F.R. § 550.805 . 5 C.F.R. § 550.805 (a), (d). Bec ause the appellant cites 5 C.F.R. § 550.805 (d) in support of his argument, we addressed his argument concerning this subsection. PFR File, Tab 1 at 9. 8 the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶12 We further ORDER the agency to tell the appellant promptly in writing when it believes it has full y 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). ¶13 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 communi cations with the agency. 5 C.F.R. § 1201.182 (a). ¶14 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation ne cessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 ‑day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY 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 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 9 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 HTS7 The initial decision, as supplemented by this Final Order, constitutes the Board’s final dec ision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the 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 th eir jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropr iate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appea ls for the Federal Circuit, which must be received by the court 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. 10 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 11 you do, then you must file with the district court no later than 30 calendar days after your representative recei ves this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepa yment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for revie w to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 12 (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 personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.8 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. 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. 8 The original statutory provision that provi ded for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file pet itions for judicial review of MSPB decisions in certain whistleblower 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 Novem ber 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 If you are interested in securing pro bono representation 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 DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DF AS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment . Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severan ce pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). 2 NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with 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 amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Rest oration 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.	HAMILTON_WILLIE_R_DA_0754_15_0375_I_1_FINAL_ORDER_1924427.pdf	2022-05-13	null	DA-0754	NP
4,411	https://www.mspb.gov/decisions/nonprecedential/FLOWERS_SAMANTHA_NICOLE_AT_315H_16_0752_I_1_FINAL_ORDER_1923640.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SAMANTHA NI’ COLE FLOWERS, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER AT-315H -16-0752 -I-1 DATE: May 11, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Samantha Ni’ Cole Flowers , Indian H ead, Maryland, pro se. Christopher Midgley , Fort Lee, Virginia, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her probation ary termination appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpre tation of statute or regulation or the erroneous 1 A nonp recedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to fo llow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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 Feder al 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 failed to nonfrivolously allege that she has a statutory right of appeal as an employee under 5 U.S.C. § 7511 (a)(1), we AFFIRM the initial decision. BACKGROUND ¶2 Effective November 17, 2015, t he agency appointed the appellant to a competitive -service position as a Sales Store Checker. Initial Appeal File (IAF), Tab 7 at 10 -14. Less than 1 year later, effective July 29, 2016, the agency terminated her employment during her probationary period for misconduct. Id. at 27-31. The appellant filed a Board appeal challenging her termination. IAF, Tab 1. ¶3 The administrative judge issued an order setting forth the law applicable to the question of the Board ’s jurisdiction and ordered the appellant to file evid ence and argument showing that her appeal was within the Board’ s jurisdiction . IAF, Tab 3. The app ellant did not respond to the order. The agency responded to the order and moved to dismiss the appeal for lack of jurisdiction . IAF, Tabs 7 -8. Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismis sing the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID). The administrative judge found that the appellant failed to raise nonfrivolous allegations of Board jurisdiction because she did not 3 allege that her termination was based on con ditions arising pri or to her appointment or that it was based on partisan political reasons or marital status discrimination. ID at 2 -3. ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has opposed the a ppellant’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). An appellant has the burden of establishing that the Board has jurisdiction over her appeal. 5 C.F.R. § 1201.56 (b)(2)(i)(A). A probationary employee in the competitive service has a limited regulatory right of appeal. See 5 C.F.R. § 315.806 . If such a person is terminated for reasons that arose after her appointment, as was the appellant, she may appeal to the Board only if she raises a nonfrivolous claim that her termination was based on partisan political reasons or marital status. 5 C.F.R. § 315.806 (b). ¶6 The administrative judge correctly determined that th e Board lacks jurisdiction pursuant to 5 C.F.R. § 315.806 because the appellant did not allege that her termination was due to discrimination on the basis of marital status or partisan political affiliation . ID at 3 . Although on review the appellant explains that she failed to respond to the adminis trative judge’s jurisdictional order because she was confused about the Board’ s process, she does not dispute any of the administrative judge’s findings or offer any evidence or argument raising nonfrivolous allegations of Board jurisdiction. PFR File, Ta b 1 at 1. ¶7 A probationary employee also may appeal her termination to the Board if she meets the definition of “employee” under 5 U.S.C. § 7511 (a)(1). See McCormick v. Department of the Air Force , 307 F.3d 1339 , 1340 -43 (Fed. Cir. 2002). The definition of “employee” includes an individual i n the competitive 4 service (i) who is not serving a probationary or trial period under an initial appoi ntment; or (ii) except as provided in section 1599e of title 10,2 who has completed 1 year of current continuous service under other than a tempo rary appointment limited to 1 year or less. 5 U.S.C. § 7511 (a)(1)(A). ¶8 The appellant does not dispute that she was serving a probationary period at the time of her termination . IAF, Tab 1 at 1. She also had comple ted less than 1 year of current conti nuous service when she was terminated. IAF, Tab 7 at 10-14, 27 -31. Although the record reflects that the appellant had prior Federal service from November 9 , 2009 , to February 2, 2012, IAF, Tab 7 at 32-35, such service does not count towards the 1-year current continuous service requirement because there was a break in service, see, e.g. , Claiborne v. Department of Veterans Affairs , 118 M.S.P.R. 491 , ¶ 6 (2012) ( stating that current continuous service means a period of employment or service immediately preceding an adverse action without a break in F ederal ci vilian employment of a workday). Thus, the appellant does not satisfy t he definition of employee set forth in 5 U.S.C. § 7511 (a)(1)(A ). ¶9 Accordingly, we find that the administrative judge properly dismissed the appeal for lack of jurisdiction. 2 Section 1599e of title 10 of the U.S. Code , which was enacted pursuant to the National Defense Authorization Act (NDAA) for Fiscal Year 2016 , require s certain newly appointed Department of Defense employ ees to serve a 2 -year probationary period. See Pub. L. No. 114 -92, § 1105, 129 Stat. 726, 1023 -24. As a result, the NDAA also amended the definition of employee under 5 U.S.C. § 7511 (a)(1)(A)(ii ) to require an individual appointed to a permanent position within the competitive service at the Department of Defense after November 25, 2015 , to have completed 2 years of current continuous service instead of 1 year. See id. This amendment, however, does not apply to the appellant who was appointed to her position on November 17, 2015. 5 NOTICE OF APPEAL RIG HTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the 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 describ ed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the n otice, 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 Feder al Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may vis it our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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 n o later than 30 calendar days after your representative receives this decision. If the action involves a claim of 7 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a cou rt-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be acc essed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC ) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no la ter than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N. E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 8 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for 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 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. Cour t of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the F ederal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 20 17. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Board neither endorses the services provided by any at torney 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	FLOWERS_SAMANTHA_NICOLE_AT_315H_16_0752_I_1_FINAL_ORDER_1923640.pdf	2022-05-11	null	AT-315H	NP
4,412	https://www.mspb.gov/decisions/nonprecedential/ROBINETTE_CHRISTOPHER_M_AT_0752_16_0633_I_1_FINAL_ORDER_1923848.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTOPHER M. ROBIN ETTE, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER AT-0752 -16-0633 -I-1 DATE: May 11, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher M. Robinette , Ariton, Alabama, pro se. Eric J. Teegarden , Esquire, Fort McCoy, Wisconsin, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The agency has filed a p etition for review of the initial decision, which reversed the appellant ’s removal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decisio n is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record cl osed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to address a separate charge of absence without leave (AWOL) , we AFFIRM the initial decision. BACKGROUND ¶2 The agency issued the appellant a Notice of Leave Restriction on February 17, 2015, which informed him that his chronic, unscheduled absences were consid ered excessive and negatively affected the agency’s ability to accomplish its mission. Initial Appeal File (IAF), Tab 4 at 32 -34. On May 18, 2016, the agency issued a Notice of Proposed Removal (NOPR) for excessive absenteeism, which specified that from February 21, 2015, through April 16, 2016, he was absent 939.30 hours out of a total of 2103.70 available duty hours and that, of the 31 pay periods during that time , he worked only 3 full pay periods. Id. at 26 -27. The agency notified the appellant in a letter dated June 22, 2016, that his removal was effective June 24, 2016. Id. at 16 -17. ¶3 The appellant filed an appeal with the Board’s Atlanta regional office, in which he challenged his removal and argued that he was out of work due to medical issues. He acknowledged that he was placed on leave restrictions , and he asserted that he complie d with the restrictions when he was capable of doing so. IAF, Tab 1. 3 ¶4 In an initial decision, t he administrative judge found that the agency’s action was predicated upon approved leave, including annual leave, sick leave, and leave without pay . IAF, Tab 7, Initial Decision (ID) at 4.2 He observed that an agency , generally , cannot take an adverse action for approved absences. Id. However, an exception exists for instances of excessive absences if, as pertinent here, the agency provided the employee with notice that his failure to become available to work could lead to an adverse action. Id. (citing Cook v. Department of the Army , 18 M.S.P.R. 610 , 611 -12 (1984)). The administrative judge found that the February 2015 leave restriction letter was insufficient notification to the appellant that his approved absences could lead to removal. ID at 4-5. Thus, the administrative judge found that the agency failed to present preponderant evidence that the circumstances in this case justify an exception to the rule that bars an agency from discipli ning an appellant for approved leave during the relevant period, and therefore, the administrative judge reversed the removal action. ID at 5 -6. ¶5 The agency has filed a petition for review challenging the administrative judge’s decision. Petition for Revi ew (PFR) File, Tab 1. The appellant has not filed a response. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 As a general rule, an agency’s approval of leave precludes it from taking an adverse action on the basis of those absences. Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 30 (2015) , clarified by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶¶ 30 -31 (2016) . However, as the administrative judge correctly found , an agency may take an adverse action based on excessive use of leave if it can prov e that : (1) the employee was absent for compelling reasons beyond his control so that the agency’s approval or disapproval of leave 2 The appellant did not request a hearing, and thus, the administrative judge based his decision on the written record. ID at 1; IAF, Tab 1. 4 was immaterial because the employee could not be on the job; (2) the absences continued beyond a reasonable time, and the a gency warned the employee that an adverse action could be taken unless the employee became available for duty on a regular, full ‑time, or part -time basis; and (3) the position needed to be filled by an employee available for duty on a regular, full -time , or part -time basis. Combs v. Social Security Administration , 91 M.S.P.R. 148 , ¶¶ 12-13 (2002) ; Cook , 18 M.S.P.R. at 611-12. ¶7 On review, the agency argues that it warned the appellant that he could be disciplined for excessive absences when it suspended him in November 2014 and April 2015 and that the administrative judge erred in finding otherwise. PFR File, Tab 1. The agency ass erts that the record evidence shows that the appellant was issued a 3 -day suspension on November 3, 2014 , and a 14 -day suspension on April 20, 2015 , for failure to follow proper leave procedures and that the suspension notices “clearly state [], ‘[y]ou are cautioned [that] any repetition of this or similar offenses may result in more severe disciplinary action against you. ’” Id. at 8. The agency argues further that the “ Administrative Judge incorrectly create s a world in which the Appellant’s 2 letters of leave restriction and 2 suspensions for failing to fol low leave procedures and AWOL d o not constitute notice that the continued absences would result in additional discipline.” Id. at 9. In support of this argument, the agency submits the Notice of Decis ion letters for each of the suspension s with its petition for review. Id. at 12-16. ¶8 However, there is only one leave restriction letter in the record. IAF, Tab 4 at 32 -34. Further, while the record below includes the Standard Form 50s documenting each of the two suspensions, it does not include either of the decision letters which the agency has submitted on review. Id. at 30, 36. Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable 5 before the reco rd was closed despite the party’ s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980). In this case, the agency has made no showing that these documents were unavailable despite its due diligence, nor has the agency provided any explana tion as to why these documents were not submitted below. PFR File, Tab 1. Thus, we will not consider these documents furnished for the first time on review. Accordingly, w e limit our review of the initial decision to the issue of whether, based on the e vidence in the record below, the agency’s February 2015 leave restriction letter was sufficient to notify the appellant that his approved absences could lead to removal. ¶9 The administrative judge found that the agency presented no evidence showing that the appellant was warned he could be rem oved for excessive absenteeism, and thus, the agency failed to meet its burden under the exception set forth above in Cook , 18 M.S.P.R. at 611 -12. Specifically, the administrative judge found that the Notice of Leave Re striction failed to provide the appellant with sufficient notice that he could be disciplined for excessive absenteeism, up to an d including removal, even if he followed the restriction procedures. ID at 5. On review, the agency argues that the February 2015 leave restriction letter was sufficient to notify the appellant that his excessive absences could result in disciplinary action. PFR File , Tab 1 at 8 -9. ¶10 We agree with the administrative judge that, while this letter contained warnings that the appellant’s failure to follow the procedures prescribed for requesting leave could lead to “consideration of disciplinary action,” the notice did not address any such action for excessive absences, even if the appellant complied with the restrictions. IAF, Tab 4 at 32 -34. Thus, because the warnings the appellant received were insufficient to notify him that his approved absences could lead to removal for excessive absenteeism, the administrative judge correctly found that the agency failed to meet the second prong in Cook . ¶11 Regarding the 13 hours of AWOL that the agency included in the charge of excessive absences, we do not consider this leave under the Cook standard but 6 will instead consider it as an AWOL charge. See Savage , 122 M.S.P.R. 612 , ¶ 32. To prove an AWOL charge, the agency must show that the employee was absent and that his absence was not authorized or that his request for leave was properly denied. Little v. Department of Transportati on, 112 M.S.P.R. 224, ¶ 6 (2009) . The NOPR and removal decision state that the appellant was AWOL for 13 hours but provide no additional details regarding these absences . IAF, Tab 4 at 16, 27. ¶12 The agency provided two charts below that reflect that the appellant was designated as AWOL , id. at 40, 42, one indicating that he was AWOL for 13 hours , the second reflecting only 4 hours of AWOL for the same period , and neither chart indicat ing specific dates , id. at 16-17, 40, 42. Furthe r, while the agency file documents which pay periods included the appellant’s absences, there is only one pay period which reflects that he was in an AWOL status, and that was for a total of .50 hours. Id. at 43. Finally, a lthough the appellant appears to have admitted in his response to the NOPR that he was “AWOL,” he did not explain what he understood AWOL to mean and suggested that his absences were for medical reasons . Id. at 24; compare Cole v. Department of the Air Fo rce, 120 M.S.P.R. 640, ¶ 9 (2014) (explaining that an agency may rely on an appellant’s admissions in support of its charge), with King v. Department of Veterans Affairs , 105 M.S.P.R. 21 , ¶ 16 n.2 (2007) ( observing that an agency’s generalized stipulation that the appella nt engaged in whistleblowing was too vague to constitute an admission of fact and that parties may not stipulate to legal conclusions) . Thus, we agree with the administrative judge’s finding that the agency failed to prove a charge of AWOL. ¶13 Accordingly, the agency has provided no basis on review to disturb the administrative judge’s findings and determinations . ORDER ¶14 We ORDER the agency to cancel the removal action and to restore the appellant effective June 24, 2016. See Kerr v. National Endowment for t he Arts , 7 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶15 We also ORDE R the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to co operate 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 b ack 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. ¶16 We further ORDER the agency to tell the appellant promptly in writing when it bel ieves it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶17 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 i f 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 resul ts of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶18 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the 8 Board’s decision in accordance with the attached lists so that payment can be made within the 60 ‑day period set forth above. NOTICE OF APPEAL RIG HTS3 The initial decision, as su pplemented 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 state ment of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requireme nts. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board ord er must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S. C. § 7703 (b)(1)(A). 3Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W . Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” 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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whol e or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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 n o later than 30 calendar days after your representative receives this decision. If the action involves a claim of 10 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a cou rt‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be acces sed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the 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 EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the W histleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 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 per sonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 20 439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informa tion regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4The 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. The All Circuit Review Act is retroac tive 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/CourtWeb sites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public /DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify th e specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, adminis trative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment e arning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award . The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payro ll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amou nt and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable) . 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If emplo yee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 ‑7 above. The following information must be include d on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	ROBINETTE_CHRISTOPHER_M_AT_0752_16_0633_I_1_FINAL_ORDER_1923848.pdf	2022-05-11	null	AT-0752	NP
4,413	https://www.mspb.gov/decisions/nonprecedential/HARROW_STUART_R_PH_0752_13_3305_I_1_FINAL_ORDER_1923920.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD STUART R. HARROW, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER PH-0752 -13-3305 -I-1 DATE: May 11, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stuart R. Harrow , Kew Gardens, New York, pro se. Lida V. Kianoury , Esquire, Philadelphia, Pennsylvania, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the agency’s furlough action. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 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 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 d iscretion, 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 Regulat ions, 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 fo r 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 Defense Contracting Management Agency (DCMA) in its Philadelphia, Pennsylvania office. Initial Appeal File (IAF), Tab 1 at 7 -9, Tab 4 at 24 -28. The D CMA is a component of the Department of Defense (DOD). Vassallo v. Departm ent of Defense , 122 M.S.P.R. 156, ¶ 2, aff’d , 797 F.3d 1327 (Fed. Cir. 2015) . DOD imposed department -wide furloughs during Fiscal Y ear (FY) 2013. The furlough s resulted from the sequestration , which requir ed across -the-board reductions in Federal spending pursuant to the Balanced Budget and Emergency Deficit Control Act, as amended , as well as from the misallocation of funds while DO D was operating under a continuing resolution and incurring unexpectedly high wartime costs . Complete Defense Contract Management Agency Administrative Record for FY 2013 Furlough Appeals (CAR) , part 1 at 1-8.2 The furloughs were widely imposed throughou t DOD with only a few categories of exempt employees. Id. at 63 -67. As a component of DOD, the DCMA was required to follow the directive of the Secretary of Defense and implement the furloughs within its workforce. Id. at 72. 2 The CAR is a set of documents pertain ing to all DCMA a ppeals for the 2013 sequestration furlo ugh. The CAR may be found on the Board’s website at https://www.mspb.gov/furloughappeals/dcma2013.htm . 3 ¶3 The agency issued the app ellant a proposal notice for the furlough, which he received on May 29, 2013. IAF, Tab 4 at 30 -32. The appellant replied to the notice and requested that the agency exempt him on the ground that the furlough would impose a financial hardship on his famil y. Id. at 29. The deciding official issued the appellant a decision letter on July 2, 2013, informing him that he would be furloughed for up to 11 workdays; ultimately, he was furloughed for 6 days. Id. at 20-23, 26 -28. ¶4 The appellant filed a timely Board appeal challenging the furlough. IAF, Tab 1. He questioned the legitimacy of the furlough action and argued that he should have been exempt because the resulting loss of pay would subject him to financial hardship. Id. at 5; IAF, Tab 4 at 29. He also took issue with the decision to require him to serve his furlough days on a discontinuous basis rather than on consecutive days, arguing that he might have been able to find temporary employment during the furlough days if he had been allowed to serve them consecutively. IAF, Tab 1 at 5. The appellant additionally challenged the agency’s assertion that the furlough promoted the efficiency of the service. Id.; IAF, Tab 8 at 5 -13, Tab 15. He advocated broadening the defin ition of “efficiency of the service” and establishing a formula by which it could be measured. IAF, Tab 8 at 8-9, 11 -13, Tab 11 at 8-27. ¶5 Originally, the appellant’s appeal was consolidated with those filed by other DCMA employees assigned to the agency’ s Philadelphia Office, and the consolidated appeal was designated as DCMA Phila v. Department of Defense , MSPB Docket No. PH-0752 -14-0405 -I-1. Consolidated Appeal File (CAF), Tab 3.3 The administrative judge directed the appellants in DCMA Phila to file their prehearing submissions by May 11, 2015, and to participate in a prehearing teleconference on May 18, 2015. CAF, Tab 13. Of the 33 persons who comprised the pool of appellants in the consolidated appeal, only the appellant in 3 All pleadings and orders in the CAF are docketed as DCMA Phila v. Department of Defense , MSPB Docket No. PH-0752 -14-0405 -I-1. 4 the instant case filed a prehearing submission or participated in the prehearing teleconference. CAF, Tab 16. The administrative judge thus cancelled the hearing for the other appellants, deciding their appeals on the written record. Id. The administrative judge held a heari ng for the appellant on June 25, 2015. IAF, Tab 15 at 1. ¶6 The administrative judge issued an initial decision finding that the agency established it had a legitimate factual basis for the furlough and that the furlough promoted the efficiency of the servic e. IAF, Tab 20, Initial Decision (ID) at 10. He explained that he lacked authority to change Board law regarding defining and measuring the efficiency of the service. ID at 10 -11. The administrative judge further found that the appellant failed to show he was erroneously excluded from any of the categories of employees exempt from the furlough for mission -specific reasons . ID at 10. As for the appellant’s contention that the furlough caused his family financial hardship, the administrative judge found that such equitable considerations would not establish a basis for finding that the furlough action was improper or that it failed to promote the efficiency of the service. ID at 11. He likewise found that the Board lacked jurisdiction over such conside rations as whether the appellant might have been allowed to serve the furlough on consecutive days. ID at 11 -12. The administrative judge thus affirmed the furlough action. ID at 12. ¶7 Before issuing the initial decision, the administrative judge notified the parties that the Board had experienced a significant data loss from its computer systems, and the recording of the hearing in this appeal had been lost. The administrative judge prepared for the parties a detailed 6 -page Memorandum of Record Summariz ing the Hearing of June 25, 2015, which set forth the issues and testimony from the hearing. IAF, Tab 15. The memorandum states that both parties reviewed the administrative judge’s notes from the hearing, which were reproduced therein, and both confirme d that the notes accurately represented the testimony and closing arguments presented at the hearing. Id. at 1. The 5 administrative judge prepared the initial decision from these hearing notes. ID at 1 n.1. ¶8 The appellant filed a petition for review and a related motion to reopen discovery for the purpose of examining the Board’s records. Petition for Review (PFR) File, Tabs 1, 3. The appellant argues that the administrative judge’s preparation and use of the Memorandum of Record, though admirable, did not have a basis in the Board’s procedures or rules. PFR File, Tab 1 at 9 -11. The appellant further argues that because the Memorandum of Record was prepared only 4 days before the initial decision was issued, it was likely that the initial decision was prepared from an alternative source. Id. at 7. The appellant additionally asserts that the administrative judge “did not provide any details regarding the date of [the Board’s data] loss, or the circumstances surrounding the loss.” Id. at 10. He thus explains that he “invokes his right of D iscovery, and requests that the [Board] provide him with the full circumstances of the ‘issue involving the Merit Systems Protection Board’s computer server.’” Id. ¶9 At the outset, to the extent that the appellant may be asserting that the loss of hearing tapes violate d 5 U.S.C. § 7701 (a)(1) (providing for a hearing “for which a transcript will be kept ”) or 5 C.F.R. § 1201.53 (a) (recognizing that a hearing is ordinarily recorded by a court reporter under an administrative judge ’s guidance, but that “[j]udges may prepare recordings in some hearings, such as those conducted telephonically”), we disagree . ¶10 In Harp v. Department of the Army , 791 F.2d 161 , 163 (Fed. Cir. 19 86), the U.S. Court of Appeals for the Federal Circuit reject ed a petitioner ’s claim that the unavailability of a hearing transcript constituted h armful error per se , requiring reversal of the Board ’s decision . The court noted that “such loss is not fatal ” to the court’s ability to review a Board appeal . The court analyzed several factors in its consideration of whether a fatal flaw occurred, such as whether the appellant established that he was prejudiced by the loss of the hearing transcript, whether the appellant showed that the administrative judge failed to consider or misused 6 any particular testimony from the hearing, and whether other evidence existed in the record that would support the administrative judge ’s findings. Id.; see also Kemp v. Department of Veter ans Affairs , 154 F. App ’x 912, 914 (Fed. Cir. 2005)4; Morales v. Merit Systems Protection Board , 932 F.2d 800 , 802 (9th Cir. 1991); Henderson v. Office of Personnel Management , 109 M.S.P.R. 529 , ¶ 5 n.1 (2008). ¶11 Here, we find that the appellant did not show that he was prejudiced by the absence of the telephonic hearing tapes and he did not allege that the administrative judge failed to consider or misused any particular testimony of the two approved witnesses that might have caused a different resul t in this case. In addition, while the hearing tapes may not have been available, the record in this case was sufficiently developed to provide a basis for a meaningful review of the issues raised by the appellant. In his summary of the prehearing confer ence, the administrative judge noted that, in making his decision, he would consider all of the exhibits contained in the agency files in both this case and the consolidated appeal designated as DCMA Phila , along with any documents attached to the appellan t’s petition for appeal. The administrative judge also wrote that he would consider the exhibit s included in the DCMA administrative record, located at http://www.mspb.gov/furloughappeals/dc ma2013.htm . Our review of the initial decision indicates that the administrative judge did just that; t he initial decision contains a detailed and thorough analysis that demonstrates a careful consideration of the testimony and weighing of the evidence. ID at 1-12. In fact, the appellant failed to show that the hearing testimony was in any way different from that related by the administrative judge in the initial decision. ¶12 The appellant further suggests that the hearing itself was too informal, and a recording of the hearing would show that he had been ill -prepared to testify under 4 The Board may follow a nonprecedential decision of the Federal Circuit when, as here, it finds its reasoning persuasive. Morris v. Department of the Navy , 123 M.S.P.R. 662, ¶ 13 n.9 (2016). 7 such circumstances. He argues that had he been able to give his prepared testimony, the outcome of the appeal may have been different. PFR File, Tab 1 at 10-11. He include d with his petition for review a copy of the prepared testimony comprising Power Point slides and hand -written notes that he evidently was intending to provide at a more formal hearing. Id. at 22-35. The appellant’s argument is unavailing. The appellant asserted that he may have been confused by some of the administrative judge’s instructions during the prehearing conference. Id. at 8-9. However, having subsequently agreed in writing that the Memorandum of Record accurately represented the hearing testimony from which the administrative judge would prepare the initial decision, id. at 17-21, he cannot reverse his position now in the ho pe that the Board will grant him the opportunity to present his testimony and arguments once more and in greater detail. ¶13 We likewise deny the appellant’s motion to reopen discovery. Discovery is the process by which a party may obtain information releva nt to his case that another person or party has not already provided. 5 C.F.R. § 1201.71 . Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence. Id. Discovery is intended to assist the parties in preparing and presenting their cases. Id. Board records pertaining to its information technology systems5 would not assist the appellant in finding admissible evidence re garding DCMA’s decision to furlough him. Therefore, t he appellant’s motion is denied. ¶14 The appellant also has asked the Board to reconsider its standard set forth in Chandler v. Department of the Treasury , 120 M.S.P.R. 163 (2013), for determining whether a furlough decision promotes the efficiency of the service . PFR File, Tab 1 at 8, 11 -14. In Chandler , the Board deferred to agency discretion 5 MSPB’s Annual Report for FY 2015 explained that the agency “experienced an IT outage in late June 2015 resulting in the loss of [its] virtual IT environment and employee working and archived documents.” Annual Report for FY 2015 (Feb. 29, 2016), https://mspb.gov/about/annual_reports/MSPB_FY_2015_Annual_ Report_1275851.pdf . 8 regarding decisions such as allocating budgetary resources and furlough days among employees who are not similarly situated . Chandler , 120 M.S.P.R. 163 , ¶ 9. Instead, the Board found that the efficiency of the service determination encompass ed issues relating to uniformly and consistently applying the furlough, includ ing whether the agency used a furlough to target employees for personal reasons, or attempted to exempt certain employees from the furlough without legitimate management reasons . Id. The appellant asserts that the separate opinion in Chandler , which crit icized the majority’s recognition of the agency’s broad discretion under the statute to impose a furlough, offered a better approach. PFR File, Tab 1 at 8. The appellant argued that the Board should expand the definition of the efficiency of the service and establish criteria by which to measure how the efficiency of the service is furthered, considering each agency’s unique mission requirements. Id. at 12. He argues that the Board’s definition is so broad as to be vague. Id. at 12-13. ¶15 The appellant’ s argument is unavailing. The appellant acknowledges that Chandler is the Board’s current standard for analyzing whether a furlough promotes the efficiency of the service.6 He also admits that the administrative judge followed Chandler . While he might c riticize Chandler and agree with the then-Vice Chairman’s separate opinion, we find his personal preferences on this issue are insufficient reason f or the Board to disturb settled law. 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 6 The U.S. Court of Appeals for the Federal Circuit in Berlin v. Department of Labor , 772 F.3d 890 , 895 (Fed. Cir. 2014) “ [found ] nothing improper ” in the Board’s adoption of the standard set forth in Chandler and determined that the Board’s standard was “reasonable. ” 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of th is decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their 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 11 EEOC’s Office of Federal Operations within 30 calendar days after you r eceive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later tha n 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petit ion for review “raises no challenge to the Board’s 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.8 The court of appeals must receive your 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of a ppeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 12 petition for review within 60 days of the date of issuance of this decisi on. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addres s: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of App eals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services prov ided by any attorney nor warrants that any attorney will accept representation in a given case. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower rep risal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HARROW_STUART_R_PH_0752_13_3305_I_1_FINAL_ORDER_1923920.pdf	2022-05-11	null	PH-0752	NP
4,414	https://www.mspb.gov/decisions/nonprecedential/OGLESBY_STACIE_D_DC_0752_20_0387_I_1_FINAL_ORDER_1923205.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD STACIE D. OGLESBY, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DC-0752 -20-0387 -I-1 DATE: May 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Morgan Smith , Esquire and Hunter Griffin , Esquir e, Dallas, Texas, for the appellant. Greg Allan Ribreau , Esquire, Charlotte, North Carolina, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has petitioned for review of the July 6, 2020 initial decision in this appeal. Initial Appeal File , Tab 21 , Initial Decision ; Petition for Review (PFR) File, Tab 4. 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. 1 A nonprecedential order is one that the Board has determined does not 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 ¶2 After the filing of the petition for review, the agency submitted a motion to dismiss the appeal and the petition for review based on a settlement agreement between the parties. PFR File, Tab 10. The agency submitted the settlement agreement, which is titled “SETTLEMENT AGREEMEN T AND RELEASE ” and was signed and dated by the appellant on November 11, 2021 , and by the agency on November 12, 2021. Id. at 10-11. The settlement agreement provides, in pertinent part, that the appellant withdraws both her appeal and her petition for review of that appeal . Id. at 8. Additionally, the appellant filed a separate notice of withdrawal of her appeal. PFR File , Tab 11. Fina lly, on April 4, 2022, the parties filed a joint stipulation providing that the settlement agreement would be entered into the record for enforcement. PFR File , Tab 12 at 4. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawf ul 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. Departme nt 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, w e find here 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 enforcement by the Board. PFR File, Tab 1 0 at 10, Tab 12 at 4 . In addition, we find that the agreement is lawful on its face and that the parties freely entered into it. 3 ¶5 Accordingly, 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, and we accept the settlem ent 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 promptly fil ing 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 d o not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 filing ti me limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 5 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option ap plies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a d isposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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 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 protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegation s of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the F ederal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federa l Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is ret roactive 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,” wh ich is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb. gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representat ion in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov /Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	OGLESBY_STACIE_D_DC_0752_20_0387_I_1_FINAL_ORDER_1923205.pdf	2022-05-10	null	DC-0752	NP
4,415	https://www.mspb.gov/decisions/nonprecedential/COFFIE_TERRENCE_JAMAR_AT_315H_17_0484_I_1_FINAL_ORDER_1923251.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TERRENCE JAMAR COFFI E, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-315H -17-0484 -I-1 DATE: May 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Terrence Jamar Coffie , Tallahassee, Florida, pro se. Heather G. Blackmon , Gainesville, Florida, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his termination ap peal for lack of jurisdiction. Generally , we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous applicatio n of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the 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, w e DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On petition for review, the appellant argues that he was not given a “fair chance” during the proceedings regarding his termination for misconduct and his appeal before the Board due to his probationary status. In particular, he asserts that he had paid union dues but was not eligible for union representation because he was terminated during his probationary period. He argues that he was not “entitled to the rights” afforded to the nonprobationary employee with whom he had been involved in the confrontation that led to his termination. Petition for Review (PF R) File, Tab 1. Essentially, these arguments constitute mere disagreement with the administrative judge’s finding that the Board does not have jurisdiction over this appeal, and they provide no basis for disturbing the initial decision. See Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (recognizing that a petitioner’s mere disagreement with issues al ready raised and properly resolved by the administrative judge below does not establish a basis for review). ¶3 In addition, t he appellant submits new evidence o n review; namely , a copy of his response s to the agency’ s discovery requests, sworn before a notary public 8 days after the initial decision was issued. PFR File, Tab 1 at 6 -19. To the 3 extent that the appellant provided information in his discovery responses different from his statements in his initial appeal and response to the jurisdiction ord er, he offers no explanation why he did not submit such statements into the record below, and he has failed to show that the discovery responses are new or material. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) (stating that, under 5 C.F.R. § 1201.115 , the Board will not consider evidence submitted for the 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). Moreover, the Board will generally not grant a petition for review based on “new” evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980). The appellant has provided no argument or explanation describing how the discovery responses would alter the jurisdictional finding in the initial decision. ¶4 Accordingly, we deny the petition for review and affirm the initial decision. NOTICE OF AP PEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 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 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 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 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)( B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act , signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit co urt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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. Washingt on, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a gi ven case. Contact information for the courts of appeals can be 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	COFFIE_TERRENCE_JAMAR_AT_315H_17_0484_I_1_FINAL_ORDER_1923251.pdf	2022-05-10	null	AT-315H	NP
4,416	https://www.mspb.gov/decisions/nonprecedential/CURRY_CHARLOTTE_DA_315I_17_0203_I_1_FINAL_ORDER_1923380.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARLOTTE CURRY, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency. DOCKET NUMBER DA-315I -17-0203 -I-1 DATE: May 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Bobby R. Devadoss , Esquire and Megan Zeller , Esquire , Dallas, Texas, for the appellant. Eric B. Tucker , Esquire, Dallas, Texas, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal of an agency action returning her from her GS-13 Supervisory Paralegal Specialist to her former GS -12 Paralegal Specialis t position during her supervisory probationary period based on a finding that she 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 failed to make a nonfrivolous allegation of marital status discrimination. On petition for review, the appellant argues the merits of the agency action and claims that the administrati ve judge failed to properly assess her claim. Petition for Review File, Tab 3 at 8 -16, Tab 6 at 5 -7. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; t he initial decision is based on an erroneous 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 pet itioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Bo ard’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 We agree with the administrative judge’s conclusion in the initial decision that the appellant failed to make a nonfrivolous allegation of marital status discrimination , effectively depriving the B oard of jurisdiction over her appeal. De Cleene v. Department of Education , 71 M.S.P.R. 651 , 656 (1996) (finding that the only basis for Board jurisdiction over the return of an individual serving in a probationary supervisory status to his previous position is if he makes a nonfrivolous allegation of discrimination based on marital status or partisan polit ics); Initial Appeal File (IAF), Tab 14, Initial Decision (ID). The appellant alleges that the agency returned her to a nonsupervisory position due to the actions of her husband , who is employed as an Administrative Law Judge in the same office where the appellant works. IAF, Tab 6 at 8-10, Tab 12 at 5-6. Even if taken as true, the se allegations do not show that the agency treated the 3 appellant differently due to her marital status nor do they relate to the essence of her status as married. Smirne v. De partment of the Army , 115 M.S.P.R. 51 , ¶ 8 (2010) ( To make a nonfrivolous allegation of mar ital status discrimination, a person may allege facts to show that she was treated differently because of her marital status or that go to the essence of her status as a married, single or divorced person .); see Collins v. Merit Systems Protection Board , 65 F. App’x 297, 301 (Fed. Cir. 2003) ( finding that the appellant failed to make a nonfrivolous allegation of marital status discrimination, as she asserted that the agency treated her differently based on her husband’s enlisted status in the Navy )2; see also James v. Department of the Army , 55 M.S.P.R. 124 , 127 (1992) ( finding that the appellant’s allegation that he was terminated during his probationary period because the agency did not like the actions of his wife did not constitute a claim of marital status discrimination) . In reaching this conclusion, t he administrative judge properly analyzed the appellant’s claim against the appropriate standard. ID at 1 -6. Due to the lack of jurisdiction , we cannot address the merits of the appellant’s return to the nonsupervisory position she previously held. Burton v. Department of the Air Force , 118 M.S.P.R. 210 , ¶ 16 (2012). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the natu re of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal r ights, the Merit Systems Protection Board does not provide legal advice on which option is most 2 The Board may rely on unpublished decisions of the U.S. Court of Appeals for the Federal Circuit if, as here, it finds the reasoning persuasive. Vores v. Department of the Army , 109 M.S.P.R. 191 , ¶ 21 (2008) , aff’d , 324 F. App’x 883 (Fed. Cir. 2009) . 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 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 juris diction. If you wish to seek review of this 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 d ismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. C ourt of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 5 for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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 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 4 The original statutory provision that provided for judicial review of certain whist leblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decis ions in certain whistleblower 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 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	CURRY_CHARLOTTE_DA_315I_17_0203_I_1_FINAL_ORDER_1923380.pdf	2022-05-10	null	DA-315I	NP
4,417	https://www.mspb.gov/decisions/nonprecedential/ACKMAN_TERRY_WAYNE_AT_831E_16_0386_I_1_FINAL_ORDER_1923421.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TERRY WAYNE ACKMAN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-831E -16-0386 -I-1 DATE: May 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Terry Wayne Ackman , Saint Louis, Missouri, pro se. Thomas Styer , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for revie w of the initial decision, which dismissed as withdrawn his appeal of a reconsideration decision by the Office of Personnel Management (OPM) . Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of ma terial fact; the initial decision is based on an erroneous interpretation of statute or regulation or 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial 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 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 dec ision. 5 C.F.R. § 1201.113 (b). ¶2 For the reasons described in the initial decision, we find that the appellant unequivocally withdrew his appeal both ora lly and in writing . Initial Appeal File (IAF), Withdrawal Audio File; IAF, Tab 22 ; IAF, Tab 23, Initial Decision at 2; see Rose v. U.S. Postal Service , 106 M.S.P.R. 611 , ¶ 7 (2007) (stating that an appellant’s withdrawal of an appeal is an act of finality and must be by clear, unequivocal, and decisive action) . ¶3 In his petition fo r review, the appellant argues that he withdrew his ap peal based on misleading or incorrect information . Petition for Review (PFR) File, Tab 1, Tab 2 at 1.2 Specifically, he references OPM’s contention that , if his application for disability retirement were approved, his monthly disability retirement benefi t would be the same as his current retirement benefit. PFR File, Tab 1; IAF, Tab 6 at 4. He argues that OPM’s contention is at odds with the administrative judge’s statement that his disability retirement benefit would be capped at 40% of his average pay , whereas his current retirement benefit is 62% 2 Because, based on his initial filings, it was unclear whether the appellant intended to file a petition for review with the Board, the Clerk of the Board sought clarification from the appellant. P FR File, Tabs 1 -6. The appellant indicated that he wanted his pleadings considered as a petition for review. PFR File, Tabs 7 -8. 3 of his average pay. PFR File, Tab 1; IAF, Tab 21 at 2 n.1. Based on our review of the record, we find that the administrative judge’s statement is con sistent with OPM’s calculations . B ecause his earned ann uity would be greater than his disability retirement annuity, which would be capped at 40%, the appellant would receive benefits based on his earned annuity computation . IAF, Tab 6 at 4-10; see OPM, Computation of Retirement Benefits, CSRS and FERS Handbook , § 61A2.1 -1D (1998) , https://www.opm.gov/retirement -services/publications - forms/csrsfers -handbook/c061.pdf (identifying the circum stances when a disability retirement is not advantageous to a retiring employee and explaining that in such circumstances the employee generally receives benefits based on the earned annuity computation). Therefore, w e find that the information furnished below by OPM and the administrative judge was not misleading or incorrect, and thus, it provides no basis to disturb the initial decision. See Rose , 106 M.S.P.R. 611, ¶ 7 (stating that the Board may relieve an appellant of the consequences of his decision to withdraw an appeal when the decision was based on misleading or incorrect information provide d by the Board or the agency). Moreover, t o the extent the appellant is seeking information from the Board about the calculation of his specific retirement benefit s, PFR File, Tab 2 at 1 , we are statutorily prohibited from issuing advisory opinions , 5 U.S.C. § 1204 (h); Blaha v. Office of Personnel Management , 108 M.S.P.R. 21, ¶ 11 (2007). ¶4 Accordingly, we fi nd that the administrative judge properly dismissed the appeal as withdrawn. NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights include d 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 summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 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 6 EEOC’s Office of Federal Operations within 30 calendar days after you receiv e this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Wash ington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5S W12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no cha llenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of compe tent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President 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 for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases wit h the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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	ACKMAN_TERRY_WAYNE_AT_831E_16_0386_I_1_FINAL_ORDER_1923421.pdf	2022-05-10	null	AT-831E	NP
4,418	https://www.mspb.gov/decisions/nonprecedential/CROSS_SHARON_L_NY_844E_16_0220_I_1_REMAND_ORDER_1923449.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SHARON L. CROSS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER NY-844E -16-0220 -I-1 DATE: May 10, 2022 THIS ORDER IS NONPRECEDENTIAL1 Sharon L. Cross , Cooperstown, New York, pro se. Linnette Scott , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member REMAND ORDER ¶1 The Office of Personnel Management (OPM) has filed a petition for revie w of the initial decision, which dismissed this appeal without prejudice until either medical documentation demonstrated the appellant’s medical fitness or the appellant secured representation . For the reasons discussed below, we GRAN T 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 OPM’s petition for review, AFFIRM the initial decision to the extent that it dismissed the appeal without prejudice for 120 days, VACATE the initial decision to the extent that it dismissed the appeal without prejudice beyond 120 days, and REMAND the cas e to the field office for further adjudication in accordance with this Remand Order. ¶2 On August 30, 2012, the appellant filed the instant appeal challenging OPM’s reconsideration decision that disallowed her disability retirement application under the Fe deral Employees’ Retirement System. Cross v. Office of Personnel Management , MSPB Docket No. NY -844E -12-0269 -I-1, Initial Appeal File, Tab 1. At the appellant’s request, from January 24, 2013, through January 28, 2016, the administrative judge dismissed the matter without prejudice nine times to provide her an opportunity to obtain representation.2 Cross v. Office of Personnel Management , MSPB Docket No. NY -844E -16-0220 -I-1, Refiled Appeal File (RAF), Tab 1. The appeal was automatically refiled on April 28, 2016. Id. ¶3 The appellant requested an additional dismissal without prejudice, stating that attorneys were looking into her case and that she needed more time to obtain representation. RAF, Tabs 3, 6. On July 13, 2016, she submitted a request for a 120-day stay of proceedings, along with a three -sentence letter from her physician, asserting that she had been seriously ill and received advice from her physician that she should limit her activities for 120 days. RAF, Tab 14. The administrative judge d enied her request. RAF, Tab 15. The appellant requested that the administrative judge reconsider this denial and sought an order staying any further proceedings until she was medically capable to proceed pro se or until she obtained representation. RAF, Tab 16 at 4. ¶4 On August 1, 2016, the administrative judge issued an initial decision dismissing the appeal without prejudice. RAF, Tab 18, Initial Decision (ID). She 2 These initial decisions can be found at MSPB Docket Nos. NY -844E -12-0269 -I-1 through NY -844E -12-0269 -I-9. 3 considered that the appellant’s medical condition would affect her ability to prosecut e her appeal, but she found that there was no indication when the medical condition would end. ID at 3. She dismissed the appeal without prejudice to be refiled only when either medical documentation demonstrated that the appellant was medically fit to r epresent herself in the processing of her appeal or she obtained a representative. Id. ¶5 OPM has filed a petition for review, and the appellant has responded in opposition to the petition. Petition for Review File, Tabs 1 -2, 4. ¶6 The Board disfavors dismissa ls without prejudice that do not contain a specific refiling date, especially whe n, as here, there is no indication when the matter underlying the dismissal will be resolved. Argabright v. Department of Defense , 113 M.S.P.R. 152, ¶ 8 (2010). In this case, the administrative judge did not set a date certain for refiling the appeal but instead referred to an uncertain date when the appellant would be able to obtain representation, despite the fact that she had been unable to obtain representation for more than 3 years, or when she would be medically fit. ID at 3. Under these circumstances, we find that the administrative judge erred in dismissing the appeal without prejudice without setting a date certain for refiling the appeal. Mojarro v. U.S. Postal Service , 115 M.S.P.R. 433, ¶ 7 (2010). ¶7 When an administrative judge has erred by failing to set a date certain for refiling an appeal, the Board has modified the initial decision by setting a date certain for the refilin g. See, e.g. , Selig v. Department of the Army , 102 M.S.P.R. 189, ¶ 8 (2006). The appellant requested a stay of proceedings for 120 days in July 2016. RAF, Tab 14. This is the only request that is supported by any medical documentation, albeit a brief three -sentence letter. Id. We find that it was appropriate for the administrative judge to grant this request. Because over 120 day s have passed both from the appellant’s request and from the initial decision, we find that it is now appropriate to remand the appeal to the field office for refiling. 4 ¶8 On remand, if the appellant requests an additional dismissal without prejudice based up on her medical condition, the administrative judge should determine whether she identifies her condition and explains both why it prevents her from proceeding with her appeal and how long the condition might be expected to continue. Argabright , 113 M.S.P.R. 152, ¶ 7. The administrative judge also should provide OPM an opportunity to respond to any such arguments. Id. The administ rative judge also may consider whether the procedures for appointment of representation outlined in French v. Office of Personnel Management , 810 F.2d 1118 , 1120 (Fed. Cir. 1987) (finding that, in a disability retirement appeal, the Board has authority to request pro bono representation for an appellant who asserts that he is mentally incompetent), are applicable to this appeal. ORDER ¶9 For the reasons discussed ab ove, we remand this case to the field office for further adjudication in accordance with this Remand Order.3 FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk o f the Board 3 The case index in this appeal indicates that Tab 11 of the Refiled Appeal File contains a pleading filed by the appellant on May 25, 2016, entitled “Motion to Change Date of Status Conference.” However, the pleading is not contained in the file. RAF, Tab 11. On remand, the administrative judge shall ask the parties to submit the pleading so that it may be entered into the record .	CROSS_SHARON_L_NY_844E_16_0220_I_1_REMAND_ORDER_1923449.pdf	2022-05-10	null	NY-844E	NP
4,419	https://www.mspb.gov/decisions/nonprecedential/HARE_CHRISTOPHER_HARVEY_PH_3443_14_0638_C_1_FINAL_ORDER_1923471.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHRISTOPHER HARVEY H ARE, Appellant, v. NATIONAL CREDIT UNIO N ADMINISTRATION, Agency. DOCKET NUMBER PH-3443 -14-0638 -C-1 DATE: May 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher Harvey Hare , Abingdon , Maryland, pro se. Scott E. Schwartz , Esquire, Alexandria, Virginia, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appell ant has filed a petition for review and the agency has filed a cross petition for review of the compliance initial decision, which dismissed the appellant’s petition for enforcement as untimely filed or, in the alternative, denied the petition on the merit s. Generally, we grant petitions such as these only 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or 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 affe cted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. Therefore, we DENY the petition for review and the cross petition for review. Except as expressly MODIFIED to clarify that we do not apply the doctrine of equitable tolling under these circumstance s, we AFFIRM the compliance initial decision . BACKGROUND ¶2 The appellant applied, but was not selected, for the CU-0580 -13/14 Regional Lending Specialist position under Job Announcement Number RV -14- DEU -1049051 , because the agency found that he failed to provide documentation demonstrating that he was entitled to veterans’ preference . Hare v. National Credit Union Administration , MSPB Docket No. PH -3443 -14-0638 -B-1, Remand File (RF), Tab 21 at 121-31. Accordingly, the agency did not refer him to the selecting official for consideration . Id. He filed a Board appeal ch allenging his nonselection as violati ng his veteran s’ preference rights . Hare v. National Credit Union Administration , MSPB Docket No. PH -3443 -14-0638 -I-1, Initial Appeal File (IAF) , Tab 1. The administrative judge issued an initial decision that dismissed the appeal for lack of jurisdiction because the appellant failed to exhaust his administrative remedy with the Department of Labor (DOL). IAF, 3 Tab 12, Initial Decision . The appe llant filed a timely petition for review of the administrative judge’s decision , in which he submitted a July 1 6, 2014 DOL determination letter that concluded that his application failed to demonstrate his entitlement to veterans’ preference . Petition for Review File, Tab 1 at 6. Based upon the receipt of this letter, the Board reversed the initial decision and remanded the appeal. Hare v. National Credit Union Administration , MSPB Docket No. PH -3443-14-0638 -I-1, Remand Order (Oct. 8, 2014). ¶3 On remand , after holding a hearing, the administrative judge found that the appellant demonstrated that the agency violated his veterans’ preference rights regarding the selection for the Regional Lending Specialist position and thus ordered the agency to reconstruct the hiring process. RF, Tab 25, Remand Initial Decision (RID) at 6-9. The administrative judge informed the appellant that the decision would becom e final on July 24, 201 5, unless he filed a petition for review. RID at 11. He also infor med the appellant that, if he believed that the agency did not fully comply with the Board’s order , he could ask the Board to enforce its decision by filing a petition for enforcement and that such a petition must be filed no later than 30 days after the d ate of service of the agency’s notice that it had complied with the initial decision . RID at 10. ¶4 On July 15, 2015, the agency informed the appellant that it had complied with the Board’s order. Hare v. National Credit Union Administration , MSPB Docket No. PH -3443 -14-0638 -C-1, Compliance File (CF), Tab 4 at 43 -44. Despite the administrative judge ’s notice regarding how to file a petition for enforcement , the appellant appealed to the U .S. Court of Appeals for the Federal Circuit on August 31, 2015 , which the court interpreted as a challenge to the agency’s reconstruction of the hiring process . See Hare v. National Credit Union Administration , 633 F. App’x 789, 790 -91 (Fed. Cir. 2016) . The court dismissed the petition for lack of jurisdiction , stati ng that the appellant was required to challenge the agency’s compliance before the Board prior to appealing to the Federal Circuit. Id. at 791. The court also noted that the deadline for challenging 4 the agency’s compliance had passed but stated that the Board could consider whether to accept the appellant’s petition for enforcement “under its equitable tolling doctrine.” Id. ¶5 On February 1, 2016, the appellant filed the instant petition for enforcement in which he challenges the agency’s review of his app lication during the reconstructed hiring process , argues that he was entitle d to 5 years of wages, and asserts that, although his petition was untimely, it should be deemed timely based upon the doctrine of equitable tolling. CF, Tab 1. The administrative judge dismissed the petition as untimely filed without good cause shown and without a showing of entitlement to equitable tolling or, alternative ly, with a finding that the agency complied with the initial decision. CF, Tab 8, Compliance Initial Decision (CID). ¶6 The appellant has filed a petition for review , and the agency has filed a response in opposition to the appellant’s petition and a cross petition for review.2 Compliance Petition for Review (CPFR) File, Tabs 1 -2, 4. DISCUSSION OF ARGUMEN TS ON REVIEW The appellant’s petition for enforcement is untimely. ¶7 Pursuant to the Board’s regulations, an employee must file a petition for enforcement within 30 days after the date of service of the agency’s notice that it has complie d with the Board’s decision. 5 C.F.R. § 1201.182 (a). The agency sent the appellant notice of its compliance on July 15, 2015. CF, Tab 4 at 43 -44. Thus, the appellant’s petition for e nforcement was due no later than August 16, 2015.3 See 5 C.F.R. § 1201.182 (a). The appellant did not file his petition for 2 The appellant has submitted evidence for the first time on review, including an August 15, 2015 complaint of retaliation, a September 2015 motion to amend his Federal Circuit brief with title 5 of the United States Code attached , and the January 21, 2016 Federal Circuit decision. CPFR File, Tab 1. This evidence is not new , and thus , we have not considered it. See 5 C.F.R. § 1201.1 15(d). 3 The administrative judge stated that, because the appellant received the agency’s notice of compliance, dated July 15, 2015, on July 17, 2015, the filing deadline should 5 enforcement until February 1, 2016. CF, Tab 1. Accordingly , his petition for enforcement wa s 171 days late.4 ¶8 Nevertheless, in certain limited circumstances, the Board has found that a petitio n was timely when the appellant timely filed it in an incorrect forum. See generally Godesky v. Department of Health & Human Services , 101 M.S.P.R. 280, ¶ 6 (2006) ( finding that the appellant timely filed his Board appeal from an arbitrator’s de cision when he mistakenly filed with the Equal Employment Opportunity Commission). However, the appellant did not appeal to the Federal Circuit until August 31, 2015 , which was after the July 24, 201 5 deadline for filing a petition for review as well as the August 16, 2015 deadline for filing a petition for enforcement. CID at 10 -11; CF, Tab 1 at 33-37. Accordingly, we find no basis for finding that the appellant’s petition was timely based upon his mistaken appeal to the Federal Circuit . We do not apply the doctrine of equitable tolling.5 ¶9 The appellant asserted below and on review that his petition for enforcement is timely based upon the doctrine of equitable tolling. CF, Tab 1 at 4; CPFR File, Tab 1 at 11. We are mindful of the Federal Ci rcuit’s statement in its decision regarding the possibility of applying the doctrine of equitable be calculated from July 17, 2015. CID at 5 -6; CF, Tab 1, Tab 4 at 43 -44. However, pursuant to the Board’s regulations, the filing deadline for a petition for enforcement is calculated from the date of service of the agency ’s notice of compliance , 5 C.F.R. § 1201.182 (a), and thus , the filing deadline is calculated from July 15, 2015, the date that the agency sent the notice of its compliance to the app ellant via commercial carrier . Any error in this respect is harmless because the petition for en forcement was untimely based upon either date . See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). 4 To the extent th at the appellant asserts that he intended to file a petition for review , even if we considered his filing as a petition for review, such a petition would be untimely by over 6 months . RID at 11; CF, Tab 1; CPFR File, Tab 1 at 4; see 5 C.F.R. § 1201.114 (e). 5 We clarify the initial decision to the extent that the administrative judge analyzed equitable tolling and good cause for the appellant’ s delay together . CID at 4 -7. Instead , as discussed, we find that the doctrine of equitable tolling is inapplicable . 6 tolling. Hare , 633 F. App’x at 791. However, as discussed below, we find that this doctrine does not apply to compliance cases, such as this one. ¶10 In certain instances, the Board considers whether to apply the doctrine of equitable tolling to a statutory deadline under which the filing period is suspended for equitable reasons . For instance, the Board has considered equitable tolling in individual right of ac tion (IRA) appeals and Veterans Employment Opportunities Act of 1998 (VEOA) appeals to determine whether a case should be considered timely filed . See, e.g., Heimberger v. Department of Commerce , 121 M.S.P.R. 10 , ¶¶ 9-12 (2014) (considering the doctrine of equitable tolling and finding that the appellant did not show a sufficient basis to toll the filing deadline of her IRA appeal pursuant to 5 U.S.C. § 1214 (a)(3)(A) ); Ginger y v. Office of Personnel Management , 119 M.S.P.R. 43, ¶¶ 17-18 (2012) (finding that the application of equitable tolling to waive the 60 -day period for filing a written complaint with DOL was not appropriate); Alegre v. Department of the Navy , 118 M.S.P.R. 424 , ¶ 17 (2012) (remanding a VEOA appeal to consider whether equitable tolling would render the appeal timely when the appellant had not file d his Board appeal within the statutory 15 -day deadline after receiving notification from DOL ). The Board considers whether to apply equitable tolling in these situations because the statutory basis for the deadlines in these appeals does not pro vide for waiving the time limit for good cause. See 5 U.S.C. §§ 1214 (a)(3)(A) , 3330a (a)(2)(A), (d)(1)(B) ; Heimberger , 121 M.S.P.R. 10, ¶ 9; Alegre , 118 M.S.P.R. 424 , ¶ 17; 5 C.F.R. § 1209.5 (b). Furthermore, these circumstances are limited to situations such as whe n an employee has been induced or tricked by his adversary ’s misconduct into allowing the filin g deadline to pass or whe n an appellant has actively pursued his judicial remedies by filing a defective pleading during the statutory period . Irwin v. Department of Veterans Affairs , 498 U.S. 89 , 96 (1990) . ¶11 When, as here, the Board is considering the appellant’s petition for enforcem ent in a VEOA appeal , as opposed to the VEOA appeal itself, the Board 7 may apply its own regulations , as set forth in chapter II, subchapter A, part 1201 of title 5, to address procedural matters . See generally Marshall v. Department of Health & Human Services , 587 F.3d 1310 , 1314 -15 (Fed. Cir. 2009). Under these regulations, instead of considering equitable tolling, the Board considers whether the appellant’s petition was timely filed or whether there was good cause for the delay . 5 C.F.R. § 1201.182 (a). ¶12 Further, even if we considered the applicability of the doctrine of equitable tolling, we would find it inapplicable here . The administrative judge informed the appellant of the appropriate deadline for filing a petition for enforcement and there is no evidence that the agency or the administrative judge induced or tricked the appellant regarding the filing deadline. RID at 10 . Accordingly, ev en if we did consider the doctrine of equitable tolling , we would find no basis for waiving the deadline in this case. The appellant has not shown good cause for the delay in filing his petition for enforcement. ¶13 If an appellant files his petition for enforcement more than 30 days after the date of service of the agency’s notice that it has complied with the Board’s decision, he must submit a statement and evidence showing good cause for the delay and request an extension of time for filing the petition. Vargo v. U.S. Postal Service , 78 M.S.P.R. 66, 71 (1998); 5 C.F.R. § 1201.182 (a); see Gallegos v. Merit Systems Protection Board , 844 F.3d 1340 , 1342 -43 (Fed. Cir. 2016) (affirming the Board’s finding that the appellant did not establish good cause for the untimely filing of his petition for enforc ement of a settlement agreement) . To establish good cause for the untimely filing, the appellant must show that he exercised du e 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 will consider the following: (1) the length of the delay; (2) the reasonableness of h is excuse and his showing of due diligence; (3) whether he is proceeding pro se; and 8 (4) whether he has pre sented evidence of the existence of circumstances beyond his control that affected h is ability to comply with the time limits or of unavoidable casualty or misfortune that similarly shows a causal relationship to his inability to timely file h is petition f or review. Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201 , ¶ 5 (2014) ; 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). ¶14 As the administrative judge properly found, the delay in this case was lengthy. CID at 5-6. Specifically, the appellant’s petition for enforcement was 171 days late and he did not request an extension of time to file his petition. 5 C.F.R. § 1201.182 (a); CF, Tab 1, Tab 4 at 43 -44. Accordingly, this factor weighs heavily against finding good cause for the delay. See, e.g. , Dean v. U.S. Postal Service , 100 M.S.P.R. 556 , ¶ 5 (2005) ( finding that a delay of 6 months is not minimal) . ¶15 The appellant attempt s to excuse his delay by arguing that he did not receive the agency’s notice of compliance until July 17, 2015 , at which point he attempted to contact DOL to seek advice. CPFR File, Tab 1 at 5 . He asserts that, because DOL did not contact him until after July 24, 2015 , he only had minimal time to comply with the deadline for filing a petition for enforcement . Id. at 11. He further argue s that he decided to appeal to the Federal Circuit because the filing deadline there was longer than the Board ’s deadlines . Id. He also assert s that the agency’s “late compliance” with the initial decision left him with only a few days to file a petition for review. Id. at 6. ¶16 Even assuming that the appellant did not receive the agency’s notice of compliance until July 17, 2015 , and that he did not receive DOL’s advice until July 24, 2015, he still had several days to file a peti tion for enforcement or to request an extension . Thus, t hese excuses are not persuasive and do not justify the fact that he did not file a petition for review or request an extension of time, should he have wished to do so . Furthermore , we agree with the administrative judge that the initial decision ordered the agency to reconstruct the hiring process 9 within 30 days of its issuance on June 19, 2015 , and that, because the agency submitted its comp liance letter prior to the July 20, 2015 due date on July 15, 2015, it was not late in complying with the order. CID at 10; CF, Tab 4 at 43 -44; see 5 C.F.R. § 1201.182 (a). Consequently , to the extent any late compliance by the agency could possibly have confused the appellant, there was no such issue in this case. Furthermore , to the extent that the appellant attempts to justify his late filing because he appealed instead to the Federal Circuit, we find that this is inconsis tent with the clearly delineated instructions in the initial decision for challenging compliance, and thus we do not find that th is is a reasonable excuse. CID at 10. ¶17 We also agree with the administrative judge that the appellant has shown no unavoidable casualty or misfortune that prevented him from filing on time. CID at 7. Moreover , although we recognize that the appellant is pro se, we find that, because the initial decision clearly informed him about the relevant deadlines, he should have known when to file his petition . Brame v. Department of Veterans Affairs , 98 M.S.P.R. 224 , ¶ 5 (2005) (stating that, although the appellant’ s pro se status wa s a factor weighing in her favor, it wa s insufficient to excuse her untimeliness ). Thus, we find that the appellant failed to establish good cause for the untimely filing of his petition for enforcement. The appellant has not otherwise demonstrated a reason for disturbing the initial decision. ¶18 Next, we find that the appellant has not shown that the administrative judge was biased . CPFR File, Tab 1 at 5. In making a claim of bias or prejudice against an administrative judge, a party mus t overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Montgomery v. Department of Health & Human Services , 123 M.S.P.R. 216, ¶ 13 n.4 (2016). The appellant’s general allegations do not rise to this level. We also find that, although the appellant challenges the administrative judge’s failure to process his appeal in 120 days , any suc h delay does not provide a reason for disturbing the 10 initial decision because it did not prejudice his substantive rights .6 CPFR File, Tab 1 at 5; see Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). The agency’s cross petition for review provides no reason for disturbing the initial decision. ¶19 Finally, the ag ency, in its cross petition for review , opposes the administrative judge’s prior finding that it was obligated to permit the appellant to supplement his application after the vacancy closing date. CPFR File, Tab 4; RID at 9. This argument does not provide a basis for disturbing our finding that the appellant’s petition for enforcement was untimely , and thus it is not necessary to address it. NOTICE OF APPEAL RIG HTS7 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statu te, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following 6 We agree with the administrative judge that, e ven if the appellant’s petition for enforcement was timely, it would otherwise have been denied. Contrary to the appellant’s ar guments, the administrative judge was not required to compare his application to that of other applicants or to allow him to prove his finance qualifications , and we agree that the agency did not improperly overlook or exclude his experiences . CID at 10; CPFR File, Tab 1 at 5 -7; see Miller v. F ederal Deposit Insurance Corporation , 121 M.S.P.R. 88 , ¶ 9 (2014 ) (finding that the agency properly considered the totality of the appellant ’s experiences in determining that he was not qualified for a position) , aff’d , 818 F. 3d 1361 (Fed. Cir. 2016). The appellant has not otherwise provided a reason for disturbing the administrative judge’s finding that his petition for enforcement would have been denied. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (finding no reason to d isturb the administrative judge’ s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusi ons on issues of credibility ). 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 approp riate in any matter. 11 summary of availa ble appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may res ult in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the approp riate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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. 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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action 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 13 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your repre sentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 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.8 The court of appeals must receive your 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the Pr esident on 14 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the 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. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower 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	HARE_CHRISTOPHER_HARVEY_PH_3443_14_0638_C_1_FINAL_ORDER_1923471.pdf	2022-05-10	null	PH-3443	NP
4,420	https://www.mspb.gov/decisions/nonprecedential/BROWN_LAGARION_AT_315H_17_0696_I_1_FINAL_ORDER_1923543.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LAGARION BROWN, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER AT-315H -17-0696 -I-1 DATE: May 10, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lagarion Brown , Homestead, Florida, pro se. Aarrin Golson , Miami, Florida, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of his probationary termination for lack of jurisdiction . On petition f or review, the appellant argues that the agency relied on false information to justify his termination . Petition for Review (PFR) File, Tab 1 at 4. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulatio n or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the r esulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.1 15 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petit ion for review.2 2 Before the Board are four outstanding motions filed by the appellant. PFR File, Tabs 4, 7, 9, 13. His first motion requested that the Board stay judgment on his petition for review due to outstanding Freedom of In formation Act (FOIA) requests and a request for his Electronic Questionnaires for Investigations Processing (“e -QIP”) files . PFR File, Tab 4 at 3. The agency filed an opposition, PFR File, Tab 5, and the appellant attempted to file a response, but the Cl erk of the Board rejected the pleading, PFR File, Tab 6. The appellant then filed a second motion requesting permission to respond to the agency’s opposition. PFR File, Tab 7. The appellant also filed two additional motion s—one requesting leave to file a supplemental brief containing arguments related to the burden of proof and another requesting to submit evidence he received in response to a FOIA request. PFR File, Tab 9 at 3, Tab 13 at 3 . Regarding the appellant’s motion to stay judgment , he has fa iled to point to any authority that permits such a pleading. See 5 C.F.R. § 1201.114 (a)(1)-(5). As to the appellant’s motion to submit additional evidence, he has not provided informat ion indicating that the eviden ce at issue is new or material . See 5 C.F.R. §§ 1201.114 (k), 1201.115(d). H e states that he “recently received newly discovered evidence” that is “relevant” and was “not available when the record closed,” PFR File, Tab 13 at 3; however, he does not specify what evidence he intends to submit, when he obtained the evidence or learned of the information contained therein , or the nature of the information. Further, even if the motion s could be construed to contain or lead to new and material evidence, the appellant has not argued that such evidence is of sufficient weight to warrant an outcome different from what was ordered by the administrative judge. See Russo v. Veterans Administration , 3 M.S.P.R. 345 , 349 (1980) ; see also 5 C.F.R. § 1201.114 (a)(5), (k) . Specifically, the administrative judge dismissed the appeal for lack of jurisdiction because the appellant failed to nonfrivolously allege 3 Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). 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 appropri ate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law appli cable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choice s of review below to decide which one applies to your particular case. If you have questions either a statutor y basis under 5 U.S.C. § 7511 or a regulatory basis under 5 C.F.R. § 315.806 for Board jurisdiction . Initial Appeal File, Tab 10, Initial Decision . The appellant has not alleged that the information sought or obtained through the FOIA or e-QIP requests would lead to any information that goes to the question of jurisdiction. Accordingly, we DENY the appellant’s motion to stay judgment on his petition for review, his motion to submit a response to the agency’s opposition to his motion , and his motion to submit additional evidence . Regarding the appellant’s motion for leave to file additional argument in a supplemental brief, t he Board’s regulations require the appellant to describe the nature and need for the pleading. 5 C.F.R. § 1201.114 (a)(5). Here, the appellant ’s motion merely alleges that he has “addit ional arguments that [he] wish[es] this Board to consider relating to the burden of proof, w hich were inadvertently omitted .” PFR File, Tab 9 at 3. Th is statement lacks the specificity regarding the nature and need of the pleading required by the Board t o grant such a motion. Accordingly, we DENY the appellant’s motion for leave to file a supplemental brief. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particu lar relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems 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 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 hav e a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.usc ourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you ha ve a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 6 If you submit a request for review to the EEO C via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited p ersonne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appea ls for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained wit hin the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for info rmation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BROWN_LAGARION_AT_315H_17_0696_I_1_FINAL_ORDER_1923543.pdf	2022-05-10	null	AT-315H	NP
4,421	https://www.mspb.gov/decisions/nonprecedential/STRONCHECK_MARK_AT_0752_21_0347_I_1_FINAL_ORDER_1922892.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARK STRONCHECK, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER AT-0752 -21-0347 -I-1 DATE: May 9, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Stacie Dowell , Esquire, and Tyler J. Sroufe , Esquire , Dallas, Texas, for the appellant. Julia Alexandra Fitzmaurice , Jacksonville, Florida, for the agency. BEFORE Raymond A. Limon , Vice Chair 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 supervisor . On review, he challenges the administrative judge’s credibility findings. He reasserts that the agency failed to prove the charge , appears to raise a new due process 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 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 procedural error claim, and argues that the administrative judge erred in concluding the penalty of removal was within the tolerable limits of reasonableness . 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 materi al evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AF FIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The appellant appears to argue on review that the administrative judge was biased against him and “gave undue credence to agency testimony by disregarding conflicting testimony , and ignoring evidence in favor of the [a]ppellant .” Petition for Review File, Tab 3 at 12 -13. A party claiming bias or prejudgment by an administrative judge must ove rcome the presumption of honesty and integrity that accompanies administrative adjudicators. Higgins v. U.S. Postal Service , 43 M.S.P.R. 66, 68 (1989). It is well settled that an administrative judge’s case -related rulings , including those concerning credibility , even if erroneous, are insufficient to establish bias. King v. Department of the Army , 84 M.S.P.R. 235 , ¶ 6 (1999) ; Myers v. Department of Agriculture , 81 M.S.P.R. 496 , ¶ 29 (1999) . Thus, we find that the appellant ’s arguments regarding the administrative judge ’s weighing and crediting of 3 testimony and evidence fail to overcome the presumption of honesty an d integrity that accompanies administrative adjudicators. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your represe ntative receives this decision. If the action involves a claim of 5 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any require ment of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed throu gh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your di scrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washin gton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW1 2G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i ), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302( b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review w ithin 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submi t your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 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	STRONCHECK_MARK_AT_0752_21_0347_I_1_FINAL_ORDER_1922892.pdf	2022-05-09	null	AT-0752	NP
4,422	https://www.mspb.gov/decisions/nonprecedential/JIMENEZ_JOSE_L_SF_3330_19_0605_I_1_FINAL_ORDER_1922483.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOSE L. JIMENEZ, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER SF-3330 -19-0605 -I-1 DATE: May 6, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ben Toth , Esquire, San Francisco, California, for the appellant. Karen D. Glasgow , Esquire, San Francisco, California, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Membe r FINAL ORDER ¶1 After issuance of the February 2, 2021 initial decision in this appeal, the parties notified the Board that they had settled the appeal. 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 contrib uting to the Board’ s case law. See 5 C.F.R. § 1201.117 (c). 2 (PFR) File, Tab 5 ; see Initial Appeal File, Tab 22 .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 The parties submitted a document entitled “SETTLEMENT AGREEMENT AND RELEASE ” signed and dated by the ap pellant on August 18, 2021, and by the agency on September 9, 2021. PFR File, Tab 5 at 7 . The document provides, among other things, for the withdrawal and dismissal of the appeal. Id., at 5. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002), overruled on other grounds by Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) (holding that the Board may enforce settlement agreements that have been entered into the record, independent of any 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 enf orcement by the Board. PFR File, Tab 5 at 5. In addition, we find that the agreement is lawful on its face and that the parties freely entered into it. 2 As the initial decision had already been issued by the time the parties notified the Board of their settlement agreement, the submission was considered and docketed as an untimely filed petition for review of the initial decision. PFR File, Tab 6. 3 ¶5 Accordingly, we find that dismissing the petition for appeal “with prejudice to refiling” (i.e., the p arties 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 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 immediately review the law applicable to your claims and carefully follow all 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the 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 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 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 inform ation for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the 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 representative receives this decision before you do, then 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 Enhance ment Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 se ction 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 co urt of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistlebl ower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given c ase. Contact information for the courts of appeals can be 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	JIMENEZ_JOSE_L_SF_3330_19_0605_I_1_FINAL_ORDER_1922483.pdf	2022-05-06	null	SF-3330	NP
4,423	https://www.mspb.gov/decisions/nonprecedential/DORSEY_BEVERLY_YVETTE_AT_315H_21_0548_I_1_FINAL_ORDER_1922581.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BEVERLY YVETTE DORSE Y, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-315H -21-0548 -I-1 DATE: May 6, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Beverly Yvette Dorsey , Hampton, Georgia, pro se. Diane Duhig , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a pe tition for review of the initial decision, which dismissed the appeal of her probationary termination for lack of jurisdiction . On petition for review, the appellant challenges the merits of the agency’s action . Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS3 You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit 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 2 Although t here is a question regarding the timeliness of the appellant’s petition for review, we need not address it because the petition fails to meet the Board’s criteria for review. See P acilli v. Department of Veterans Affairs , 113 M.S.P.R. 526 , ¶ 12, aff’d , 404 F. App’x 466 (Fed. Cir. 2010). 3 Since the issuan ce of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful 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: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D. C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’ s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 p rovision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows app ellants to file petitions for judicial review of MSPB decisions in certain whistleblower 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 r etroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal 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. Contact information for the courts of appeals can be 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	DORSEY_BEVERLY_YVETTE_AT_315H_21_0548_I_1_FINAL_ORDER_1922581.pdf	2022-05-06	null	AT-315H	NP
4,424	https://www.mspb.gov/decisions/nonprecedential/BERGER_MELISSA_SANDY_DC_3443_22_0047_I_1_FINAL_ORDER_1922150.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MELISSA SANDY BERGER , Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER DC-3443 -22-0047 -I-1 DATE: May 5, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Melissa Sandy Berger , Norfolk, Virginia, pro se. Carol M. Lynch , Esquire, and Sherry L. Siegfried , Esquire, Pensacola, Florida, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction her appeal challenging her nonselection for a permanent appointment and the agency’s alleged rescission of an offer to extend the term of her temporary appointment. On petition for review, the appellant 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 does not address the administrative judge’s jurisdictional findings. 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 app eal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 We note that the administrative judge implied that the appellant failed to prosecute her case by failing to respond to a jurisdictional order. Initial Appeal File (IAF), Tab 6, Initial Decision at 7. The appellant argues on review that she was unable to respond to the order for medical reasons. Petition for Review File, Tab 2 at 3 -4. Failure to obey a single order does not ordinarily justify dismissal for failure to pro secute. Chandler v. Department of the Navy , 87 M.S.P.R. 369 , ¶ 6 (2000) ; see Williams v. U.S. Postal Service , 116 M.S.P.R. 377 , ¶¶ 2 -3, 9-10, 12 (2011) (affirming dismissal when an appellant made no attempt to respond to three orders, including an order to show cause that warned her that noncompliance might result in dismissal for failure to prosecute) . Here, the administrative judge issued only one order with which the appellant failed to comply. IAF, Tab 4 at 7. We clarify the initial decision to eliminate any suggestion that the appellant’s failure to respond to the jurisdictional order justifies a dismissal for failure to prosecute. In addition, we clarify that we need 3 not reach a finding regarding whether the appellant was an employee with chapter 75 app eal rights because the administrative judge properly concluded that she did not suffer an adverse action appealable under that chapter . Because we discern no basis to disturb the administrative judge’s finding that the Board lacks jurisdiction over the ap pellant’s claims, we affirm the initial decision. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 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 2 Since the issuance of the initial decision in this matter, the Board may have updated the not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition f or review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono repr esentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after yo u receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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 resp ective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employm ent Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operation s within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Op portunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunit y Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 6 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Feder al Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by a ny court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you are interes ted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appell ants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective w ebsites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BERGER_MELISSA_SANDY_DC_3443_22_0047_I_1_FINAL_ORDER_1922150.pdf	2022-05-05	null	DC-3443	NP
4,425	https://www.mspb.gov/decisions/nonprecedential/KOSHY_ROY_NELLIKKATTIL_DA_3443_21_0311_I_1_FINAL_ORDER_1922318.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROY NELLIKKATTIL KOS HY, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DA-3443 -21-0311 -I-1 DATE: May 5, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Roy Nellikkattil Koshy , Garland, Texas, pro se. Bobbi Mihal , Esquire, Dallas, Texas, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition f or review of the initial decision, which dismissed his appeal for lack of jurisdiction . On petition for review, the appellant argues the following: (1) the Board has chapter 75 jurisdiction over his appeal; (2) the agency discriminated against him; ( 3) he suffered a compensable injury ; and ( 4) his appeal was timely filed. 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 at 6-12.2 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, w as not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conc lude 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 Effective December 7, 2019, the agency appointed the appellant to the position of Rural Carrier. Initial Appeal File (IAF), Tab 7 at 17. Thereafter, the appellant applied to and was selected for the position of Postal Support Employee Sales and Services Distribution Associate (PSE SSDA). Id. at 24-28; IAF, Tab 1 at 14, Tab 6 at 4 . On September 3, 2020, an agency official stated via email that the appellant would need a “ mandatory” 5 -day break in service between both positions and that, accordingly, his last day in his Rural Carrier position would be 2 With his petition for review, the appellant provides an annotated computer printout of the status of job applications that he has submitted for various positions with the agency. PFR File, Tab 1 at 13. This document, however, was part of the record before the administrative judge; thus, it does not constitute new evidence. Initial Appeal File (IAF) , Tab 9 at 13; see Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980 ) (explaining that the Board generally will not grant a pe tition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). 3 September 6, 2020 . IAF, Tab 1 at 13 , Tab 6 at 4. Subsequently, t he agency processed a Postal Form 50 reflecting that the a ppellant resigned from his Rural Carrier position effective September 6, 2020 . IAF, Tab 7 at 18. The record, however, does not contain a resignation letter from the appellant. In fact, the appellant averred below that he di d not resign from this position , consistent with advice in the PSE SSDA job offer letter notifying him that he should not resign from his current position . IAF, Tab 1 at 32. ¶3 Six days later , on September 12, 2020, the appellant received a temporary appointment to the PSE SSDA position. IAF, Tab 7 at 19. By letter dated September 17, 2020, the agency advised the appellant that, due to eligibility reasons, his PSE SSDA offer was being rescinded. IAF, Tab 1 at 20. The appellant alleged below that he was notified by the agency’s Human Resources personnel that the reason for his separation was that he had not been a resident of the U.S. for 5 years preceding a National Agency Check with Inquiries (NACI) background investigation. Id. at 21. The record reflects that the appellant had been a permanent resident of the U.S. since December 29, 2015 , and therefore had been residing lawfully in the U.S. for approximately 4 years and 9 months prior to that time . Id. at 33. Moreover, t he record does not contain any official U.S. Postal S ervice, Office of Personnel Management, or Department of Defense rules or regulations requiring a 5 -year residency requirement to conduct a NACI check, nor does it demonstrate why the 5 -year waiting period did not preclude the appellant from obtaining a ba ckground check for his original Rural Carrier position. ¶4 According to the appellant, he was instructed by the agency to return to work as a Rural Carr ier on September 17, 2020, and he continued to perform in that position until September 26, 2020. Id. at 31. The appellant averred that, on September 28, 2020, his supervisor advised him that he had been removed from 4 the agency’s payroll system, despite lacking any notice of the same .3 Id. at 31. The agency officially terminated the appellant from the PSE S SDA position on December 18, 2020. IAF, Tab 7 at 20. ¶5 On June 21, 2021, approximately 6 months after being terminated from the PSE SSDA position, the appellant filed a Board appeal. IAF, Tab 1. On his initial appeal form, the appellant indicated that he was challenging both an involuntary resignation and th e agency’s failure to restore/reemploy/reinstate him. Id. at 3. ¶6 The agency filed a motion to dismiss the appeal for lack of jurisdiction and/or on the basis of timeliness. IAF, Tab 7 at 4 -15. Thereafter, the administrative judge issued an order to sho w cause explaining the circumstances under which the Board has jurisdiction over the removal of a U.S. Postal Service employee and ordering t he appellant to submit evidence and argument regarding jurisdiction. IAF, Tab 8 at 2 -4. The appellant filed a res ponse contending that the Board had chapter 75 jurisdiction over his appeal and that the agency had engaged in discrimination and prohibited personnel practices. IAF, Tab 9 at 5 -8. He also averred that he had completed his probationary period and reitera ted that the agency had mandated the break in service between his two positions with the agency, i.e., Rural Carrier and PSE SSDA. Id. at 6 -8, 15. ¶7 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismi ssing the matter for lack of jurisdiction. IAF, Tab 10, Initial Decision (ID) at 2, 5 -6. In so doing, she reasoned that the appellant had seemingly argued that the agency had forced him to resign and then failed to reinstate him. ID at 4. She found, ho wever, that the appellant had failed to allege that he was a preference eligible, a management or supervisory employee, or an employee engaged in personnel work in other than a purely 3 It appears that the agency could have returned the appellant to his original Rural Carrier positi on, but it did not do so. The appellant asserted below that the agency instead appointed two young individuals as Rural Carriers. IAF, Tab 1 at 5. 5 nonconfidential clerical capacity and, therefore, the Board lacked juris diction over the matter. ID at 5. She also found that, to the extent the appellant had raised claims of discrimination, prohibited personnel practices, or retaliation, his claims did not confer jurisdiction on the Board insofar as such claims are not an independent basis of Board jurisdiction. Id. The administrative judge also implicitly concluded that the Board lacks jurisdiction over the matter as a restoration appeal, explaining that “[a]t no time during the pendency of [the] appeal ha[d] the appella nt made mention of a compensable injury.” ID at 1 n.1. The administrative judge explained that, given her conclusion regarding jurisdiction, she did not need to address the timeliness of the appeal. ID at 2 n.2. ¶8 The appellant has filed a petition for re view, and the agency has filed a response. PFR File, Tabs 1, 3. In his petition, the appellant argues the following: (1) the Board has chapter 75 jurisdiction over his appeal; (2) the agency discriminated against him; (3) he has suffered “significant ha rdships and mental trauma due to the unlawful decisions” of agency human resources personnel; and (4) his appeal was timely filed. PFR File, Tab 1 at 6 -12. DISCUSSION OF ARGUME NTS ON REVIEW ¶9 In order for a Postal Service employee to appeal an adverse actio n under chapter 75 , the employee must (1) 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) have completed 1 year of current continuous service in the same or similar positions. See 5 U.S.C. § 7511 (a)(1)(B)(ii); 39 U.S.C. § 1005 (a)(4)(A)(ii); Clark v. U.S. Postal Service , 118 M.S.P.R. 527 , ¶ 7 (2012). Here, we discern no basis to disturb the administrative judge’s conclusion that the appellant failed t o make a nonfrivolous allegation that he is a preference eligible, a management or supervisory employee, or an employee engaged in personnel work in other than a purely 6 nonconfidential clerical capacity. ID at 5.4 Thus, we agree that the Board lacks chapter 75 jurisdiction over the matter.5 Similarly, we discern no basis to disturb the administrative judge’s conclusion that, absent an otherwise appealable action, the Board lacks jurisdiction over the appellant’s claims of discrimination. Id.; see Wren v. Department of the Army , 2 M.S.P.R. 1 , 2 (1980) (explaining that prohibited personnel practices under 5 U.S.C. § 2302 (b) are not an independent source of Board jurisdiction), aff’d , 681 F.2d 867 , 871 -73 (D.C. Cir. 1982). ¶10 The appellant seemingly argues that he suffered a compensable injury, i.e., “significant hardships and mental trauma du e to the unlawful decisions” of agency human resources personnel. PFR File, Tab 1 at 11-12. Federal employees, including Postal Service employees, who suffer on-the-job compensable injuries enjoy certain rights to be restored to their pr evious or compara ble positions. See Tat v. U.S. Postal Service , 109 M.S.P.R. 562 , ¶ 9 (2008) ; 5 C.F.R. part 353 . To be enti tled to any such rights , an employee must have been “separated or furloughed from an appointm ent w ithout time limitation . . . as a r esult of a compensable injury.” 5 C.F.R. § 353.103 (b). Here, however, t he appellant’s vague references to hardships and mental trauma do not confer jurisdiction on the Board or otherwise warrant a different outcome. Indeed, the appellant does not discernably allege that he suffered an on-the-job injur y; rather, he ostensibly allege s that he experienced mental hardship and 4 Indeed, a ll of the Postal Service Form 50s in the record contained a veterans’ preference code of “1,” indicating that the appellant is not a preference eligible. E.g., IAF, Tab 1 at 7; see Hay v. U.S. Postal Service , 103 M.S.P.R. 167 , ¶¶ 3-4 (2006) (discussing veterans’ preference codes on Postal Service Form 50s ). 5 The agency’s actions in this case present almost a classic case of the provisi on of misinformation that unfortunately led to the appellant’s involuntary separation. E ven if the Board were to find that the appellant established that his resignation was involuntary, however, the Board would lack jurisdiction over his appeal under chapter 75. See Paige v. U.S. Postal Service , 106 M.S.P.R. 299 , ¶ 11 (2007) ( clarifying that, to the extent the appellant raised an inv oluntary resignation claim, it is dismissed as an appeal outside the Board’s jurisdiction because the appellant failed to show that he was an agency employee with chapter 75 appeal rights). 7 trauma when agency human resources personnel removed him from his position . Thus, we agree that the Board lacks jurisdiction over the matter . ¶11 Accordingly, while we sympathize with the appellant’s situation and, specifically, with his assertion that he never intended to resign from his Rural Carrier position, we must affirm the initial decision given the Board’s lack of jurisdiction over this matter .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 summary of available appeal rights , the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdicti on. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismis sal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to revi ew your case, you should contact that forum for more information. 6 Because the appellant’s petition does not meet the Board’s crite ria for review, we do not reach the issue of the timeliness of the appeal . Nevertheless, we note that the agency never provided the appellant with notice of any appeal rights. 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Feder al Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appe als for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim o f discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial revi ew of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 9 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision . If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, 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 you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 10 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D. C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’ s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 Circu it 717 Madison Place, N.W. Washington, D.C. 20439 8 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Additional information about the U.S. Court of Appeals for the 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 website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Prote ction Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	KOSHY_ROY_NELLIKKATTIL_DA_3443_21_0311_I_1_FINAL_ORDER_1922318.pdf	2022-05-05	null	DA-3443	NP
4,426	https://www.mspb.gov/decisions/nonprecedential/ADDO_JAMES_A_DC_0752_16_0427_I_1_FINAL_ORDER_1921906.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAMES A. ADDO, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency . DOCKET NUMBER DC-0752 -16-0427 -I-1 DATE: May 4, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Warren Beard , Fayetteville, North Carolina, for the appellant . James J. Woodruff, II and Michelle Marty , Joint Base Andrews, Maryland, for the agency . BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which mitigated the appellant’s removal to a 30 -day suspension. For the reasons discussed below, we GRANT the agency’s petition for review. Except as expressly MODIFIED by th is Final Order to mitigate the appellant’s removal to a 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and admi nistrative 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 demotion to a non supervisory position at the next highest grade and a 30-day suspension , we AFFIRM the initial decision. BACKGROUND ¶2 The agency removed the appellant from his GS-11 Supervisory Genera l Supply Specialist position based on the following charges: (1) Inflicting Bodily Harm on Another (one specification); (2) Unprofessional Conduct and Harassment (four specifications); (3 ) Deliberate Concealment of Material Facts in Connection with an Offi cial Document (one specification); and (4 ) Unauthorized Absence of Eight Hours or Less (one specific ation). Initial Appeal File (IAF), Tab 8 at 28, 30 -32, Tab 9 at 71-73. The appellant filed an appeal with the Board. IAF, Tab 1. Although he initially r equested a hearing and asserted an affirmative defense of equal employment opportunity (EEO) discrimination, id. at 2, 6, he subsequently withdrew both his request for a hearing and his affirmative defense, IAF, Tab 43. ¶3 In her initial decision , the administrative judge found that the agency failed to prove its first charge because the record did not support a finding that the appellant inflicted physical harm. IAF, Tab 50, Initial Decision (ID) at 3-5. The administrative judge sustained the fi rst two specifications of the second charge, found that the third specification merged with the second specification, and determined that the agency failed to prove the fo urth specification. ID at 5-11. The administrative judge also found that the agency failed to establish the third and fourth ch arges by preponderant evidence. ID at 11-16. The administrative judge found a nexus between the sustained misconduct and the efficiency of the service and concluded that the maximum reasonable penalty for the s ustained misconduct was a 30 -day suspension. ID at 17-19. ¶4 The agency has filed a petition for review, arguing that the administrative judge erred in mitigating the penalty. Petition for Review (PFR) File, Tab 1. The agency does not argue that the admi nistrative judge erred in not sustaining 3 charges one, three, and four , or specification four of charge two . Id. The appel lant has not file d a cross petition for review , or otherwise argue d that the administrative judge erred by sustaining the second charge. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 When, as here, the Board does not sustain all of the charges, it will carefully consider whether the sustained charges merit the pen alty imposed by the agency. Boo v. Department of Homeland Security , 122 M.S.P.R. 100, ¶ 17 (2014). The process of mitigation is not, however, a mathematical one in which the penalty previously imposed must be reduced by the percentage of the charges and specifications not sustained . Valdez v. Department of Justice , 65 M.S.P.R. 390, 394 (1994) . ¶6 The Board may mitigate the penalty imposed by the agency to the maximum penalty that is reasonable in light of the sustained charges as long as the agency has not indicated ei ther in its final decision or in proceedings before the Board that it desires that a lesser penalty be imposed for fewer charges. Boo, 122 M.S.P.R. 100, ¶ 17. Here, the deciding official did not indicate that he would have imposed a lesser penalty if only specifications one and two of charge two were sustained. IAF, Tab 46 at 28-34. As already noted, the agency argues, however, that the appellant should still be removed based on the sustained misconduct. PFR File, Tab 1. Thus, the issue before the Board is whether the administrative judge erred in mitigating the appellant’s removal to a 30 -day suspension for th e two sustained specifications under the charge of u nprofessional conduct and harassment , and, if she did err, what penalty should be imposed. ¶7 The essential facts surrounding the first of the two sustained specifications are that the appellant was meeting with a female subordinate and another employee about what he believed was disrespectful conduct by the subordinate when, at the end of the meeting, the appellant asked the subordinat e for a hug , and when she refused his request, he ordered her to hug him. ID at 7; IAF, Tab 9 4 at 71, Tab 36 at 12. When she refused his order , the appellant grabbed the subordinate by the arms and attempted to pull her to a standing position from a chair . ID at 7; IAF, Tab 9 at 71. The essential facts surrounding the second of the two sustained specifications are that three of the appellant’s subordinates brought to his attention that they were going to file EEO complaints against the subordinate identified in the first specification discussed abo ve. ID at 7-8; IAF, Tab 9 at 71, Tab 36 at 13. The appellant advised them to try to resolve their differences with the subordinate with a face -to-face discussion with her. ID at 7-8; IAF Tab 36 at 13. ¶8 The Board has identified several factors as relevant in determining the appropriateness of a penalty. See Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981).2 The most important of these factors is the nature and seriousness of the offense. Boo, 122 M.S.P.R. 100, ¶ 18. Among the considerations included in this factor are the relationship of the offense to the employee’s duties, position, and responsibilities, including whether the offense was intentional or was frequently repeated. Id. ¶9 The two incidents of sustained misconduct w ere serious and were clearly related to the appellant’s supervisory position with the agency , as one involved the unwanted touching of a subordinate and the second involved discouraging employees from participating in agency programs designed to promote a workplace free of discrimination. Furthermore, there is no question that the misconduct was intentional.3 2 In Douglas , 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of factors, both aggravating and mitigating, that are relevant to the penalty determination in adverse action cases . 3 In its petition for review, t he agency argues that the penalty of removal is appropriate, in part, because of the appellant’s repeated grabbing of the subordinate employee. PFR File, Tab 1 at 5. However, neither the proposal notice, the decision notice, the agency’s Douglas factors worksheet, nor the deciding official’s sworn declaration make any reference to the appellant grabbin g the subordinate more than once. IAF, Tab 8 at 30-38, Tab 9 at 71, Tab 46 at 29, 33 -34. Only the charges and specifications set forth 5 ¶10 The Board has held that misconduct similar in nature to the first sustained specification warrants a significant disciplinary action. Woodford v. Department of the Army , 75 M.S.P.R. 350, 357 -58 (1 997) (finding demotion to a nonsupervisory position to be the maximum reasonable penalty when the appellant, with 23 years of outstanding service, hugged a coworker and kissed her on the top of her head even though she denied his req uest for permission to do so). While we are unaware of Board precedent addressing the approp riate penalty for misconduct similar to the second sustained specification , we find that it too supports a disciplinary action. ¶11 In addition, the appellant’s role as a supervisor supports a significant penalty. Portner v. Department of Justice , 119 M.S.P.R. 365, ¶ 16 (2013) (stating that agencies can hold supervisors to a higher standard of conduct). Further more, the appellant has shown little remorse for his actions, which suggests a poor potential for rehabilitation and supports a significant penalty. See Render v. Department of Veterans Affairs , 90 M.S.P.R. 441, ¶ 17 (2001) (considering lack of remorse in a penalty determination and finding that the appellant ’s failure to recog nize that her acts were improper demonstrates that she lack ed rehabilitation potential) . ¶12 The administrative judge relied on some mitigating factors in reducing the penalty to a 30 -day suspension. ID at 17-19. For instance, a t the time of the disciplina ry action, the appellant had over 10 years of Federal service with no prior discipline, which is a mitigating factor. IAF, Tab 11 at 22, Tab 46 at 30; see Wentz v. U.S. Postal Service , 91 M.S.P.R. 176, ¶ 18 (2002) (finding the in the proposal notice may be used to justify the penalty, and thus the agency’s argument on review is misplaced. Guer rero v. Department of Veterans Affairs , 105 M.S.P.R. 617, ¶ 6 (2007). Regarding the second sustained specification, although the specification provides that the appellant engaged in the misconduct on multiple occasions and the administrative judge discussed two incidents in the initial decision, there is no indication that the agency identified more than a single incident prior to the Board proceeding . IAF, Tab 9 at 71, Tab 35 at 19; ID at 8. Thus, we will only consider the single incident in assessing the penalty. See Guerrero , 105 M.S.P.R. 617, ¶ 6. 6 appellant’s 13 year s of service without prior discipline a “significant mitigating factor”). ¶13 Nevertheless , after considering the aggravating and mitigating factors in this case, we do not agree with the administrative judge that a 30 -day suspension is the maximum reasonable penalty. The appellant ’s misconduct here raises legitimate concerns about his judgment and demonstrates that he is not well suited for a supervisory role. Accordingly, we find that the maximum reasonable penalty in this case is a demotion to a non supervisory position at the next highest grade and a 30 -day suspension. See Fischer v. Department of the Treasury , 69 M.S.P.R. 614, 619 (1996) (finding that a demotion to a nonsupervisory position at the next highest grade and a 90 -day suspension was the maximum reasonable penalty whe n the appellant’s misconduct, among other things, called into doubt his ability to act as a supervisor). ORDER ¶14 We ORDER the agency to cancel the removal action and to replace it with a 30-day sus pension and a demotion to a non superv isory position at the next highest grade effective March 11, 2016 . See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision . ¶15 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary informatio n 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. 7 ¶16 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about i ts progress. See 5 C.F.R. § 1201.181 (b). ¶17 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 ha s 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). ¶18 For agencies whose payroll is admini stered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board de cision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60-day period set forth above . NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe yo u meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. 8 You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal . NOTICE OF APPEAL RIGHTS4 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of t his final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the 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 car efully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decid e which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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 issua nce of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 9 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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 10 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of 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 thr ough the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receiv e this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Wash ington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5S W12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 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 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.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 pr ovision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appe llants to file petitions for judicial review of MSPB decisions in certain whistleblower 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 re troactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 12 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the ba ck pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the docume ntation is not applicable: ☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order. ☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of al l amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, wor kers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance 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 wi ll be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g) . NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payro ll/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 provid e same data as in 2, a -g above . b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504-255-4630.	ADDO_JAMES_A_DC_0752_16_0427_I_1_FINAL_ORDER_1921906.pdf	2022-05-04	null	DC-0752	NP
4,427	https://www.mspb.gov/decisions/nonprecedential/JONES_DELONDA_CH_0752_21_0278_I_1_FINAL_ORDER_1921346.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DELONDA JONES, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER CH-0752 -21-0278 -I-1 DATE: May 3, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mary L. Rawley , Indianapolis, Indiana, for the appellant. Kyle C. Mardis , Esquire, Indianapolis, Indiana, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has fil ed a petition for review of the initial decision, which dismissed the appeal of her alleged involuntary resignation without a hearing due to her failure to offer a nonfrivolous allegation of involuntariness to support Board jurisdiction . On petition for review, the appellant argues, among other 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 things, that her supervisor o verworked her due to her sex and refused to modify her duties despite her back issues, that the agency attempted to discipline and remove her based on false charges, that agency pol ice mistreated her due to her race, and that she faced d ifficulties in her life and did not receive assistance from her union .2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous fi ndings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or th e initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal , we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appe al rights, the Merit 2 The appellant also attached documents to her petition for review which were included in the record below. Petition for Review File, Tab 1 at 13 -105; see Initial Appeal File, Tab 13 at 1 -98. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in t he dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate on e to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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 claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations 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 re view to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited 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.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 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 retroacti ve 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	JONES_DELONDA_CH_0752_21_0278_I_1_FINAL_ORDER_1921346.pdf	2022-05-03	null	CH-0752	NP
4,428	https://www.mspb.gov/decisions/nonprecedential/WILT_JOHN_PH_4324_16_0197_I_1_FINAL_ORDER_1921519.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOHN WILT, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER PH-4324 -16-0197 -I-1 DATE: May 3, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Allen A. Shoikhetbrod , Esquire, Albany, New York, for the appellant. Jennifer L. Anthony , Esquire , Indian Head, Maryland, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has petitioned for review of the December 9, 2016 initial decision in this appeal. Initial Appeal File, Tab 27 , Initial Decision ; Petition for Review (PFR) File, Tab 4. 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 t o follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board's case law. See 5 C.F.R. § 1201.117 (c). 2 ¶2 Afte r the filing of the petition for review, the appellant submitted a document entitled “Confidential Settlement Agreement and Release” signed and dated by the appellant on January 27, 2022, and by the agency on February 3, 2022. PFR File, Tab 8 at 10 . The document provides, among other things, for the withdrawal of the appeal . Id. at 5. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it . See Massey v. Office of P ersonnel 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 8 at 9 . In addition, we find that the agreement is lawful on its face and that the parties freely entered into it. ¶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 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 appropriate one to review your case, you should contact that f orum for more information. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is 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 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 If 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 Boar d’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U. S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Ci rcuit 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 Ac t, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit c ourt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 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. Contact information for the courts of appeals can be 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	WILT_JOHN_PH_4324_16_0197_I_1_FINAL_ORDER_1921519.pdf	2022-05-03	null	PH-4324	NP
4,429	https://www.mspb.gov/decisions/nonprecedential/SENTES_RAND_M_DE_0752_21_0120_I_1_FINAL_ORDER_1921549.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RAND M. SENTES, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency. DOCKET NUMBER DE-0752 -21-0120 -I-1 DATE: May 3, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rand M. Sentes , Louisville, Colorado, pro se. Lindsay M. Nakamura , Esquire, El Segundo, California, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal based on a charge of inattention to duty. On petition f or review, the appellant renews his argument that the Air Traffic Manager conspired to have him removed and unduly influenced the decision making process, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 violating his due process rights and thus committing harmful error .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 statut e or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discret ion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for 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 states on review that he learned after the record closed that the Air Traffic Manager was under investigation by the agency for “command influence” which he asserts proves his claims of undue influence . Petition for Review (PFR) File, Tab 1 at 4-6. We do not find this information new or material. First, the appellant’s first -line supervisor testified that he had filed a complaint against the Air Traffic Manager for, among other things, improper comma nd influence , and thus, the appellant had the opportunity to argue this point at the hearing . Hearing Recording (testimony of the appellant’s first -line supervisor). He has not explained why he failed to do so , and thus we need not consider the argument. See 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). In any event, the appellant has not e xplained how the mere presence of an investigation, without any further specifics , proves that the Air Traffic Manager unduly influenced the decision making process ending in his removal, or violated his due process rights. 3 NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately rev iew the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three mai n possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial r eview in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the dat e of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 in itial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts .gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endors es the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filin g a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and you r representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, relig ion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 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.as px. Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must f ile any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and yo ur representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohibited 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 Circui t 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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 fil e petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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	SENTES_RAND_M_DE_0752_21_0120_I_1_FINAL_ORDER_1921549.pdf	2022-05-03	null	DE-0752	NP
4,430	https://www.mspb.gov/decisions/nonprecedential/CONLEY_ROBERT_H_SF_1221_15_0580_W_1_FINAL_ORDER_1921020.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ROBERT H. CONLEY, Appellant, v. DEPARTMENT OF DEFENS E, Agency, and DARRIN G. SLOVANICK , Intervenor. DOCKET NUMBER SF-1221 -15-0580 -W-1 DATE: May 2, 2022 THIS FIN AL ORDER IS NONPRECEDENTIAL1 Robert H. Conley , Puyallup , Washington, pro se. Roland D. Meisner , Quantico, Virginia, for the agency. BEFORE Raymon A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The agency ha s filed a petition for review and the appellant has filed a cross petition for review of the initial decision, which granted in part and denied in part 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 the appellant’s request for corrective action in this individual right of a ction (IRA) appeal. Generall y, we grant petitions such as these only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the out come of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that neither party has established any basis under section 1201.115 for granting the petition or cross petition for review. T herefore, we DENY the petition for review and the cross 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 forme rly employed as an Industrial Security Specialist with the agency’s Defense Security Service. Initial Appeal File (IAF), Tab 16 at 33. On May 26 , 2015, he filed an IRA appeal alleging that , in reprisal for protected disc losures he made concerning mishandling of classified m aterials by a contractor and agency officials failing to take correc tive action and/or attempting to cover it up , the agency subjected him to numerous personnel actions, including (1) forcing him to for feit his leave in 2010; (2) significantly changing h is job duties; (3) placing him on administrative leave on July 13, 2012; (4) suspending him without pay for 5 days in October 2012; (5) subjecting him to a hostile work environment; (6) denying him promot ions; and (7) forcing him to retire, effective March 29, 2013. IAF, Tab s 1, 8, 54. 3 ¶3 After holding the appellant’s requested hearing, the administrative judge granted corrective action regarding the appellant’ s claims concerning his leave denial and signifi cant change in duties. IAF, Tab 86, Initial Decision (ID) at 23-28. The administrative judge denied corrective action on the remainder of the appellant’s claims. Regarding the appellant’s placement on administrative leave and suspension, the administrat ive judge found that the agency proved by clear and convincing evidence that it would have taken such actions absent the appellant’s protected disclosures. ID at 28 -34. Regarding the appellant’s hostile work environment and retirement claims, the adminis trative judge found that the appellant failed to prove that these actions amounted to pe rsonnel actions. ID at 34-42. Regarding the appellant’s denial of promotions, the administrative judge found that he failed to prove that his protected disclosures we re a contributing factor in his nonselections for certain positions. ID at 34. ¶4 The agency has filed a petition for review, the appellant has filed a cross petition for review, and the parties have filed responses. Petition for Review (PFR ) File, Tab s 1, 3, 5-6. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge properly denied the agency ’s motion to dismiss the appeal for lack of jurisdiction. ¶5 The adminis trative judge denied the agency’ s motion to dismiss the appeal for lack of jurisdiction, finding that the agency was not exempt from the provisions of the Whistleblower Protection Act under 5 U.S.C. § 2302 (a)(2)(C), which exempts certain named agencies as well as executive agencies or units thereof that have been determined by the President to have a principal function of conducting foreign intelligence or counterintelligence activities.2 ID at 2 n.1. On review, the agency a rgues that the administrative judge misconstrued its argument 2 Although some of the alleged retaliatory actions occurred after the effective date of the WPEA, Pub. L. No. 112-199, 126 Stat. 1465, the changes in the provisions of the WPEA do not affect our analysis . 4 and that it never a rgued that it was an exempt agency . PFR File, Tab 1 at 5. Rather, the agency contends that “because the [a]ppellant has neither Chapter 75 or Chapter 43 appellate rights that he could have otherwise acquired after serving a probationa ry or trial period if he had been a preference eligible employee, then he has no IRA appellate rights because there is no independent statutory basis for IRA appellate jurisdiction.” Id. The agency’s jurisdictional argument s are somewhat unclear. IAF, T ab 16; PFR File, Tab 1 at 4 -7. However, t o the extent the agency is arguing that the appellant is not entitled to bring an IRA appeal because he was appointed under 10 U.S.C. § 1601 , id. at 7, such an argument is unavailing.3 ¶6 The Board has held that employees appointed under laws exempting their appointment from the application of the civil service laws are not necessarily precluded from bringing an IRA appeal. See Fishbein v. Department of Health & Human Services , 102 M.S.P.R. 4 , ¶¶ 9 -16 (2006) (finding that the appellant’s appointment under 42 U.S.C. § 209 (f), which provides that special “consultants may be appointe d without regard to the civil -service laws, ” did not preclude him from b ringing an IRA appeal based on his termination if he o therwise met the statutory requirements for doing so ). Rath er, the right to appeal to the B oard alleging a violation of 5 U.S.C. § 2302 (b)(8) derives from 5 U.S.C. § 1221 (a), which provides a right to seek corrective action from the Board to “an employee, former employee, or applicant for employment.” Fishbein , 102 M.S.P.R. 4 , ¶ 11. To be an employee under section 1221(a), an individual must meet the definition of employee under 5 U.S.C. § 2105 . Id., ¶ 12. Under 5 U.S.C. § 2105 (a), an “employee ” is: (1) an officer and an individual who is appointed in the civil service by one of the types of individuals e numerated in the statute acting in their official capacity ; (2) engaged in the performance of a Federal function under 3 Under 10 U.S.C. § 1601 , the Secretary of Defense has the authority to establish certain defense intelligence positions “without regard to the provisions of any other law relating to the appointment, num ber, classification, or compensation of employees.” 5 authority of law or an Executive act; and (3) subject to the supervision of an authorized official while engaged in the performance of th e duties of his position. The “civil service” is defined as “all appointive positions in the executive, judicial, and legislative branches of the Government of the United States, except positions in the uniformed services.” 5 U.S.C. § 2101 (1). Based on the record, it appears that the appellant meets the definition of an employee .4 IAF, Tab 16 at 33-36; Tab 18 at 7-49; ID at 2 -3, 7-8; see Fishbein , 102 M.S.P.R. 4 , ¶ 13. ¶7 The agency also argues that, in denying its motion to dismiss, the administrative judge improperly relied u pon Czarkowski v. Merit Systems Protection Board , 390 F.3d 1347 (Fed. Cir. 2004) , because —in contrast to the appellant’s app ointment under 10 U.S.C. § 1601 —the appellant in Czarkowski was app ointed under a t itle 5 excepted -service appointment. PFR File, Tab 5 at 6. The agency misinterprets the administrative judge’s findings and conflates an agency’s exemption under section 2302 (a)(2)(C) with an employee’s entitlement to bring an IRA appeal, which requires that he meet the definition of employee under section 2105 . The administrative judge cited to Czarkowski in support of her finding that the agency was not exempt under section 2302( a)(2)(C) because it was not named in the statute and there was no showing that the President had determined that the principal function of the appellant’ s unit was conducting foreign intelligence or counterintelligence activities. ID at 2 n.1. We discern no error in the administrative judge’s analysis. Czarkowsk addressed whether a particular agency was exempt under 5 U.S.C. § 2302 (a)(2 )(C)(ii ), not whether the appellant was an employee entitled to bring an IRA appeal. Here, the agency is not arguing that the administrative judge erred in finding that it was not an exempt agency . PFR File, Tab 1 at 5. 4 The agency did not argue below and does not argue on review that the appellant fails to meet the definition of an employee. Additionally, i n response to the Board’s Order to Submit Evidence and Argumen t on this jurisdictional issue, PFR File, Tab 7, the parties did not provide any evidence or argument suggesting that t he appellant is not an employee, PFR File, Tabs 8-9. 6 The agency’s remaining arguments do not provide a basis for reversal. ¶8 In its petition for review, the agency disputes the administrative judge’s finding that the appellant suffered a personnel action when he lost 106 hours of leave after being denied use or lose leave. PFR File, Tab 1 a t 7-8. The agency contends t hat there is no evidence, such as leave or earnings statements, in the record to support the appellant’s testimony. Id. The agency further disputes the appellant’s calculation of the number of hours of leave he lost. Id. However, the agency failed to dispute that the appellant suffered a personnel action or raise such arguments below. Thus, we decline to consider them for the first tim e on review . See Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980) (stating that the Board will not consider an argument raised for the first time on review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). ¶9 In any event, the administrative judge credited the appellant’s testimony , which is corroborated by a contemporaneous email, that the agency denied his leave request, and noted that the agency w itnesses did not provide any testimony contradicting the appellant’s credible testimony surrounding the cancellation of his leave in 2010. ID at 26. Thus, the agency’s arguments constitute mere disagreement with the administrative judge’s credibility fin dings and do not provide a basis for reversal. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105-06 (1997) ( stating that the Board will defer to an administrative judge’s credibility findings and will not grant a petit ion for review based on a party’ s mere disagreement with those findings); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). ¶10 The agency further disputes the administrative judge’s finding that K.H., the Regional Director who made the decision to deny the appellant’s leave request , had a motive to retaliate. PFR File, Tab 1 at 8 -9. The administrative judge found that Regional Director K.H. , as a high -level manager in the appellant’s chain of command, had some motive to r etaliate based on the 7 appellant ’s continued protected disclosures . ID at 27. The agency a rgues that such a finding was erroneous because Regional Director K.H. had nothing to do with, and was not at the agency at the time of , the appe llant’s alleged whis tleblowing . PFR File, Tab 1 at 9 . However, the administrative judge acknowledge d that Regional Director K.H. was not with the agency when the appellant worked there the first time and initially made his protected disclosures, but found that the appellant continued to make protected disclosures after he was rehired in February 2008 , and after Regional Director K.H. was hired in April 2009.5 ID at 27. ¶11 The Board and our reviewing court have found a motive to retaliate exists on the part of high -ranking of ficials , even if they were not directly implicated by an appellant’s disclosures , when such disclosures reflect poorly on the agency . See, e.g. , Robinson v. Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019) (finding that, although the deciding official did not have a personal motive to retaliate against the appella nt for contradicting an agency Under Secretary, the Board’s administrative judge erred by failing to consider whether he had a “professional retaliatory motive” against the appellant because his disclosures “implicated the capabilities, performance, and ve racity of [agency] managers and employees, and implied that the [agency] deceived [a] Senate Committee”); Chambers v. Department of the Interior , 116 M.S.P.R. 17 , ¶ 69 (2011) (finding motive to retaliate because the appellant’ s disclosures reflected on the responsible agency officials as representatives of the agency’s general institu tional interests); Phillips v. Department of Tran sportation , 113 M .S.P.R. 73, ¶ 23 (2010) ( finding that comments g enerally critical of the agency’ s leadership would reflect po orly on officials responsible for monitoring the performance of the field staff and making sure that agency regulations are carried 5 For example, as late as July or August 2009, the appellant continued to raise the issues related to the mishandling of classified materials by a contracting agency in a letter to the agency ’s Inspector General. ID at 10; IAF, Tab 8 at 10, Tab 10 at 142. 8 out correctly and consistently ). Thus, we discern no error in the administrative judge’ s analysis . ¶12 Next, t he agency also argues that the administrative judge erred in finding that it retaliated against the appellant when it significantly changed his job duties by removing him from oversight duties involving the Boeing Corporation in or around September 2008 . PFR File, Tab 1 at 9 -10. The administrative judge found that the agency failed to prove by clear and convincing evidence that it would have removed the appellant’s Boeing duties absent his protected disclosures. ID at 24-26. In particular, t he administr ative judge found that the agency’s evidence in support of r emoving such duties was weak. ID at 24. She found that Regional Director J.W. made the decision to reli eve the appellant from such duties, and based on his testimony, he was unable to adequately explain his rationale and offered inconsistent explanations. Id. She further credited testimony of the appel lant’ s former supervisor that Regional Director J.W. instructed him to remove the appellant from Boeing work but refused to explain why. Id. ¶13 On review, the agency argues , without citation to any evidence, that Regional Director J.W. removed the appellant from overseeing Boeing at the urging of a Defense Criminal Investigative Service Special Agent (Special Agent) . PFR File, Tab 1 at 9. Thus, t he agency contends that the Special Agent was a necessary witness and it was prejudiced by the administrative judge’s refusal to issue a s ubpoena to the agency to compel his a ttendance at the hearing. Id. The record reflects that the administrative judge denied the Special Agent as a witness for the agency because she found that his testimony would be of only limited relevance to the issues before her and because he recently had failed to comply with a subpoena to attend his deposition, which prevented th e appellant from discovering his anticipated testimony. IAF, Tab 54 at 1. ¶14 We find that the denial of the Special Agent as a witness was not prejudicial to the agency. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 9 (1984) (stating that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision) . The agency had the opportunity to question Regional Director J.W. to elicit testimony concerning his involvement or lack thereof in the decision to remove the appellant from his Boeing oversight duties and to discuss a ny conversation he had with the Special Age nt or the Special Agent’s alleged urging of him to remove the appellant from such duties.6 The age ncy’s failure to elicit such testimony does not ren der the Special Agent an essential witness or establish that the administrative judge abused her discretion in denying him as a witness. Further, Regional Director J.W. did not testify that he did not make the decision to remove the appellant’s Boeing duties , IAF, Tab 40, and t he agency counsel’s bare allegation on review that the Special Agent urged Regional Director J.W. to remove the appellant from such duties does not constitute evidenc e, PFR File, Tab 1 at 9 ; see Pupis v. U.S. Postal Service , 105 M.S.P.R. 1 , ¶ 5 (2007) (stating that the s tatements of a party’s representative in a pleading do not constitute evidence) . The administrative judge properly found that the appellan t failed to prove that his retirement amounted to a personnel action. ¶15 Although a decision to resign or retire is presumed to be voluntary and outside of the Board’ s jurisdiction, Putnam v. Department of Homeland Security , 121 M.S.P.R. 532 , ¶ 21 (2014), an involuntary resignation or retirement may constitute an appealable personnel action in an IRA appe al, Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677 , ¶ 12 (2014). An appellant who claims that his retirement was involuntary may rebut the presumption of voluntariness in a variety of ways, including by showing that the retirement was the result of objectively intolerable working conditions resulting from improper acts of the agency. Conforto v. Merit Systems Prote ction Board , 713 F.3d 1111 , 6 The partie s agreed that Regional Director J.W.’ s deposition would be used in lieu of his live testimony at the hearing. IAF, Tab 46 at 8. 10 1121 (Fed. Cir. 2013), abrogated on other grounds by Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). ¶16 Here, the administrative judge found that the appellant failed to prove that he lacked a meaningful choice whether to retire due to improper actions of th e agency. She found that the incidents that occurred from 2002 to 2011 were years before the appell ant’s March 29, 2013 retirement and thus , not particularly probative regarding the voluntariness of his decision to retire. ID at 39. She found that the e vents that occurred in 2012 and ear ly 2013 were most probative. Id. Considering such events, she found that the interactions between the appellant and his managers in the year before his retirement, such as his 5 -day suspension in October 2012, would not have caused a reasonable person to retire. Id. at 39 -40. Rather, she found that the appellant retired in large part because he felt that if he did not retire, the agency would eventually remo ve him on what he considered meritless charges. Id. at 40. N onetheless, she found that the following facts weighed heavily against a finding of coercion: (1) the appellant took a month of leave in December 2012 , just prior to his retirement ; (2) he had accepted a position outside of the agency, which began on Apri l 1, 2013; and (3) he was not facing any proposed or pending adverse action at the time he made his decision to retire. Id. at 41. ¶17 On review , the appellant contends that the administrative judge erred in finding that he failed to prove that his retirement was involuntary. PFR File, Tab 3 at 2 -5. He asserts that the administrative judge failed to consider that he chose to retire rather than face what he believed was an imminent discharge resulting in a loss of his retirement benefits . Id. at 4. He argue s that , had the administrative judge considered this , it would have result ed in a finding that the agency misinformed or deceived him and failed to correct this misunderst anding to the point at which he was so fearful of termination that he was forced to retire . Id. The administrative judge, however, did consider such arguments below. She found that the appellant’s belief that he would lose his retirement benefits was 11 erroneous and that a removal would have not have affected his abilit y to retire and receive an annuity. ID at 40. She further found that the appellant failed to show that any agency official provided him with such misinformati on and therefore any reliance he may have had on such a belief was not due to agency misinformat ion. ID at 40 -41. Therefore , we find that the appell ant’s arguments on review constitute mere disagreement with the administrative judge’s well-reasoned findings and do not provide a basis for reversal. See, e.g. , Crosby , 74 M.S.P.R. at 105-06 (finding no reason to d isturb the administrative judge’ s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton , 33 M.S.P.R. at 359 (same). ¶18 Accordingly , we affirm the initial decision. ORDER ¶19 Beca use the appellant is no longer employed by the agency, we find that no meaningful corrective action can be ordered regarding the conclusion that the agency committed a prohibited personnel practice when it removed the appellant’s duties in reprisal for his protected disclosures. ¶20 We ORDER the agency to pay the appellant for the value of the 106 hours of annual leave he forfeited in 2010, with interest, 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 value of the annual leave and interest 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 value of the annual leave or interest due, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶21 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried ou t the Board’s Order and of the actions it has 12 taken to carry out the Board’s Order. The appell ant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶22 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). ¶23 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to pr ocess payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. 13 NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUEST CONSEQUENTIAL DAMAGE S You may be entitled to be paid by the a gency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.204. If you believe you meet these requirements, you must file a mot ion for consequential damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal. NOTICE TO THE PARTIE S A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214 (f). NOTICE OF APPEAL 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). 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 14 Although we offer the follow ing 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 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. 15 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding p ro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action 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 16 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your repre sentative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 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.8 The court of appeals must receive your 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 17 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal 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. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federa l Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 18 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are p aid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the ba ck pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the docume ntation is not applicable: ☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order. ☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed , there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep t he lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separa te leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Diffe rential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agen cy. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certi fication of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion com putation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	CONLEY_ROBERT_H_SF_1221_15_0580_W_1_FINAL_ORDER_1921020.pdf	2022-05-02	null	SF-1221	NP
4,431	https://www.mspb.gov/decisions/nonprecedential/SMITH_MICHAEL_J_DE_1221_21_0237_W_1_FINAL_ORDER_1920561.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL J. SMITH, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER DE-1221 -21-0237 -W-1 DATE: April 29, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael J. Smith , Peyton, Colorado, pro se. James J. Delduco , Esquire, Redstone Arsenal, Alabama, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action appeal for lack of jurisdiction. On petition for review, the appellant argues that he was “denied the opportunity to participate in the entire MSPB process,” because he wa s not permitted the chance to engage in discovery and issue interrogatories regarding the agency’s decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 to less severely discipline another employee who engaged in similar misconduct as the appellant. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. ¶2 Regarding the appellant’s argument that the administrative judge’s jurisdictional determination deprived him of the opportunity to conduct discovery, the appellant has failed to explain on review how the information he sought regarding the agency’s decision to discipline another employee for similar misconduct less severely would change the outcome of his appeal. See Davis v. Department of Defense , 103 M.S.P.R. 516 , ¶ 13 (2006) (finding that, when an appeal is dismissed for lack of jurisdiction, there is no prejudice to an appellant’s substantive rights based on the absence of discovery that did not seek information that would establish the Board’s jurisdiction). Thus, a different outcome is not warranted. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). 3 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for 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. Pleas e read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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 ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If yo u have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 5 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be ad dressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to 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 6 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 Additional infor mation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information f or the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SMITH_MICHAEL_J_DE_1221_21_0237_W_1_FINAL_ORDER_1920561.pdf	2022-04-29	null	DE-1221	NP
4,432	https://www.mspb.gov/decisions/nonprecedential/WASHINGTON_WILMORE_L_DE_0752_21_0231_I_1_FINAL_ORDER_1920566.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILMORE L. WASHINGTO N, III, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER DE-0752 -21-0231 -I-1 DATE: April 29, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wilmore L. Washington, III , Beaverton, Oregon, pro se. Varvara E. Marmarinou , Esquire, San Francisco, California, for the agency. BEFORE Raymond A. Limon , Vice Chair 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 complains about the processing of his equal employment opportunity claim s, a history of discrimination during his tenure at the agency , and that he was forced to resign because of a hostile and discriminatory work 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 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 environment . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain 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 des cribed below do not represent a statement of how courts will rule regardin g which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropria te one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Feder al 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 attorn ey nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appea lable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection B oard , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disablin g condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts ca n be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the 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. 5 If you submit a request for review to the EEOC by regular U.S. mail, the address of the E EOC 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 yo u have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants 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 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	WASHINGTON_WILMORE_L_DE_0752_21_0231_I_1_FINAL_ORDER_1920566.pdf	2022-04-29	null	DE-0752	NP
4,433	https://www.mspb.gov/decisions/nonprecedential/HAMILTON_KENNETH_PH_0752_21_0335_I_1_FINAL_ORDER_1920589.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KENNETH HAMILTON, Appellant, v. DEPARTMENT OF LABOR, Agency. DOCKET NUMBER PH-0752 -21-0335 -I-1 DATE: April 29, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sigmund J. Kozierachi , Sewell, New Jersey, for the appellant. Channah S. Broyde and Ryan C. At kinson , Esquire, Philadelphia, Pennsylvania, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision which , without a hearing, dismissed the appeal of his removal for lack of jurisdiction because the appellant made a knowing, binding election of an alternate forum when he filed a grievance under the applicable collective bargaining agreement 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 prior to his Board appeal . On petition for review, among other arguments, the appellant asserts that his union and the agency violated his right to arbitration by failing to request an arbitr ation panel from the Federal Mediation a nd Conciliation Service . 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 er roneous 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 t he Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking suc h review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 3 jurisdiction. If you wish to seek review of this final decision , you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read car efully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 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 re view to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of compete nt jurisdiction.3 The court of appeals must receive your 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HAMILTON_KENNETH_PH_0752_21_0335_I_1_FINAL_ORDER_1920589.pdf	2022-04-29	null	PH-0752	NP
4,434	https://www.mspb.gov/decisions/nonprecedential/SMITHERMAN_GLENNIS_P_CH_315H_16_0468_I_1_FINAL_ORDER_1920643.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GLENNIS P. SMITHERMA N, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER CH-315H -16-0468 -I-1 DATE: April 29, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Glennis P. Smitherman , Cleveland, Ohio, pro se. Pamela D. Langston -Cox, Esquire, and Russ Eisenstein , Esquire, Chicago, Illinois, for the agency. BEFORE Raymond A. Limon , Vice Chair 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 a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. The refore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 It is undisputed that, on December 14, 2015, the appellant received a career‑conditional appointment to the competitive -service position of GS-0962 -05 Contact Representative, subject to the satisfactory completion of a 1-year probationary period. Initial Appeal File (IAF), Tab 1 at 1, 8. On June 10 , 2016, prior to the completion of her probationary period, she was terminated for performance deficiencies. IAF, Tab 1 at 8, Tab 9 at 9. The appellant filed the instant appeal defending her performance and alleging that she was subjected to age discrimi nation, bullying, and retaliation for approaching her union with complaints about her immediate supervisor and to help her understand how her supervisor was monitoring her and conducting her appraisals. IAF, Tab 1 at 5, 11-19. ¶3 After informing the appell ant of her jurisdictional burden and providing her an opportunity to respond, IAF, Tab 3 at 2 -5, the administrative judge issued an initial decision that dismissed the a ppeal for lack of jurisdiction because the appellant failed to make a nonfrivolous alle gation that she was an “employee” under 5 U.S.C. § 7511 (a)(1) with Board appeal rights under 5 U.S.C. chapter 75 or that she had a basis to appeal on one of the limited grounds set forth in 5 C.F.R. § 315.806 , IAF, Tab 10, Initial Decision (ID) at 4 -5. The appellant has 3 filed a petition for review, arguing that the administrative judge ig nored her substantive arguments and that sh e had prior Federal service from 1965 to 1967. Petition for Review (PFR) File, Tab 2 at 3-5, 8-9. The agency has opposed the appellant’s petition, and the appellant has filed a reply to the agency’s opposition. PFR File, Tabs 4 -5. ¶4 To establish Board j urisdiction over an appeal of an adverse action under 5 U.S.C. chapter 75, an individual must, among other things, show that she satisfies one of the definitions of “employee” in 5 U.S.C. § 7511 (a)(1). Walker v. Department of the Army , 119 M.S.P.R. 391 , ¶ 5 (2013). For an individual in the competitive service, this generally means that she must either (1) not be serving a probationary or trial period under an initial appointment, or (2) have completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. 5 U.S.C. § 7511 (a)(1)(A); see Walker , 119 M.S.P.R. 391 , ¶ 5. In an adverse action appeal, if an appellant makes a nonfrivolous allegation of Board jurisdiction, she is entitled to a hearing at which she must prove jurisdiction by preponderant evidence. Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210, ¶ 8 (2009). Nonfrivolous allegations of jurisdiction are allegations of fact that, if proven, could establish that the Board has jurisdiction ov er the matter at issue. Walker , 119 M.S.P.R. 391, ¶ 6 n.2; 5 C.F.R. § 1201.4 (s). ¶5 Here, there is no dispute that the appellant was appointed to her position on December 14, 2015, subject to a 1 -year probationary period, and she was terminated approximately 6 months into her probationary period. ID at 2; IAF , Tab 1 at 1, 8, Tab 9 at 9. Thus, it is undisputed that the appellant was terminated while still serving her probationary period, foreclosing any claim to Board appeal rights under 5 U.S.C. § 7511 (a)(1)(A)(i). ¶6 On review, the appellant claims that her alleged prior Federal service from 1965 to 1967 should be considered for purposes of establishing jurisdiction under 5 U.S.C. § 7511 (a)(1)( A)(ii). PFR File, Tab 2 at 9. Prior Federal service in 4 competitive -service positions can be credited towards completion of a later probationary period in a competitive -service position if the employee shows the following: (1) the prior service was render ed immediately preceding the 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 in 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 a ppellant cannot meet the first and fourth factors because the alleged prior Federal service occurred approximately 50 years before the instant appointment, with a 48 -year break in service. Additionally, she has failed to allege any facts that, if proven, could establish the remaining factors. Her only assertion is that the prior Federal service was performed at the same Federal building as the position from which she was terminated . PFR File, Tab 2 at 9. We find that her assertions are insufficient to e stablish a nonfrivolous allegation of credi table prior Federal service amounting to 1 year of current continuous service pursuant to 5 U.S.C. § 7511 (a)(1)(A)(ii). ¶7 Because the appellant failed to make a nonfrivolous allegation that she was not serving a probationary period at the time of her termination or that she had any credi table prior Federal service amounting to 1 year of current continuous service, we agree with the administrative judge’s conclusion that the appellant failed to nonfrivolously allege that she is an “employee” within the meaning of 5 U.S.C. § 7511 (a)(1). Therefore, the appellant has no chapter 75 appeal rights before t he Board.2 Absent an otherwise appealable action, we lack jurisdiction 2 A probationary employee who lacks chapter 75 appeal rights may have the right to appeal a termination to the Board on the limited grounds set forth in 5 C.F.R. § 315.806 . Walker , 119 M.S.P.R. 391 , ¶ 5. The administrative judge found, and we agree, t hat the appellant did not allege that she met any of the limited categories discussed in the regulations. ID at 3 -4. The appellant d oes not challenge this finding on review, and we find no reason to disturb it. 5 over the appellant’s discrimination claim . PFR File, Tab 2 at 9; see Penna v. U.S. Postal Service , 118 M.S.P.R. 355 , ¶ 13 (2012). ¶8 Regarding the appellant’s retaliation claim, the precise nature of this claim is unclear, but we find no potential for jurisdiction over this matter as an individual right of action (I RA) appeal at this time because the appellant’s own submissions reflect that she did not file for corrective action with the Office of Special Counsel (OSC), which is a prerequisite for an IRA appeal. IAF, Tab 1 at 4; see 5 U.S.C. § 1214 (a)(3); Davis v. Small Business Administration , 74 M.S.P. R. 281 , 288 (1997) (finding that, because the appellant’s own submissions established that she had not sought corrective action from OSC, she could not have made a nonfrivolous allegation of the Board’s jurisdiction over an IRA appeal, regardless of whethe r the administrative judge had apprised her of the requirements for establishing jurisdiction over an IRA appeal). ¶9 Accordingly, 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 summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described belo w do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to y our particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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. 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 a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative re ceives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U. S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively , you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such reques t with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for revi ew to the EEOC by regular U.S. mail, the address of the EEOC is: 8 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhanc ement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 provid ed for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file peti tions for judicial review of MSPB decisions in certain whistleblower 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 Novemb er 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you submit a petition for judici al review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono 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	SMITHERMAN_GLENNIS_P_CH_315H_16_0468_I_1_FINAL_ORDER_1920643.pdf	2022-04-29	null	CH-315H	NP
4,435	https://www.mspb.gov/decisions/nonprecedential/MARRA_THOMAS_K_NY_0752_21_0039_I_1_FINAL_ORDER_1920247.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD THOMAS K. MARRA, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER NY-0752 -21-0039 -I-1 DATE: April 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Raymond R. Granger , Esquire, New York, New York, for the appellant. Cedric D. Bullock and Sean Lee , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The a ppellant has filed a petition for review of the initial decision, which affirmed his removal . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required 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 a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On review, t he appellant argues, among other things, that the administrative judge erred in not addressing his claim of self-defense . Petition for Review File , Tab 1 at 30 -32. He asserts that he was not the aggressor but rather the victim of an assault by multiple ferryboat crew members. Id. at 31. He characterize s his claim as an affirmative defense , id. at 30 -31, but it is more properly addressed within the context of whether the agency proved the specification . The Board has considered claims of self -defense in such a way. See Mahan v. Depar tment of the Treasury , 89 M.S.P.R. 140 , ¶ 6 (2001) (considering an appellant’s claim that she used her agency -issued firearm in self-defense in deciding whether the agency proved its charge of conduct unbecoming) . ¶3 The doctrine of self-defense is not applicable if the person raising it was not free from fault in bringing on the difficulty, unless that person retreats in good faith intending to abandon the difficulty that eventually led to the aggression. Fuller v. Department of the Navy , 60 M.S.P.R. 187 , 190 (1993), aff’d , 40 F.3d 1250 (Fed. Cir. 1994) (Table). Here, the appellant caused the circumstances that led to the altercation by improper ly boarding the ferryboat and pushing the ferryboat captain. Further, the record does not indicate any good faith effort by the appellant to “abandon” the difficulty after the initial confrontation ; rather, he 3 appears to have escalated the conflict by pun ching a crew member (and perhaps the ferryboat captain). The appellant only ran off the dock after, upon falling to the ground, the crew members saw his gun and yelled “gun” several times. Under these circumstances, we find that the appellant’s actions do not constitute self-defense . ¶4 To the extent that the administrative judge erred in not addressing the appellant’s claim of self-defense , any such error did not prejudice his substantive rights because, as discussed above, he failed to establish his claim . 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 part y’s substantive rights provides no basis for reversal of an initial decision). For the reasons stated in the initial decision, the administrative judge properly sustained the charge of conduct unbecoming a Deputy U.S. Marshal . Initial Appeal File , Tab 37 , Initial Decision at 6 -12; see Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016) (finding no reason to disturb the admin istrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on the issue of credibility). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described b elow do not represent a statement of how courts will rule regarding which cases fall within their 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 jurisdiction. If you wish to seek review of this 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 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 5 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 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 su bmit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via com mercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protecte d activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited pe rsonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or an y court of appeals of competent jurisdiction.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 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 petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If yo u submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained with in the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for infor mation regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtW ebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MARRA_THOMAS_K_NY_0752_21_0039_I_1_FINAL_ORDER_1920247.pdf	2022-04-28	null	NY-0752	NP
4,436	https://www.mspb.gov/decisions/nonprecedential/EDWARDS_PATRICK_DC_3330_21_0525_I_1_FINAL_ORDER_1920272.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PATRICK EDWARDS, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER DC-3330 -21-0525 -I-1 DATE: April 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Patrick Edwards , Pahrump, Nevada, pro se. Michael G. Stultz and Debra M. Evans , Esquire, Portsmouth, Virginia, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has fil ed a petition for review of the initial decision, which denied his request for corrective action for failing to file his Veterans Employment Opportunity Act (VEOA) complaint with the Secretary of Labor as statutorily required . Generally, we grant petitions such as this one only in the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affe cted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initi al decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On review, the appellant argues that the ad ministrative judge failed to consider hi s argument that the agency violated his veterans’ preference rights by improperly passing over his application for a Training Instructor position in favor of a nonpreference eligib le. Petition for Review (PFR) File , Tab 1 at 3. The administrative judge did not address t his argument in his initial decision, instead finding only that the appellant did not meet the 60 -day statutory deadline for filing a VEOA complaint with the Secretary of Labor as to three Heavy Mobil e Equipment Mechanic Supervisor I vacancies. Initial Appeal File (IAF) , Tab 8, Initial Decision at 1, 6. However, the appellant has not presented any evidence or argument, below or on review, that he timely filed a VEOA complaint with the Department of L abor ( DOL ) over the Training Supervisor nonselection, as is necessary to establish jurisdiction over that claim. 5 U.S.C. § 3330a ; see Gingery v. Office of Personnel Management , 119 M.S.P.R. 43 , ¶ 13 (2012) (finding that t o establish Board jurisdiction over a VEOA appeal, an appellant must, among other thing s, show that he exhausted his remedy with DOL ). A complaint filed with DOL alleging a violation of veterans’ preference rights must 3 be filed within 60 days after the date of the alleged violation. 5 U.S.C. § 3330a (a)(2)(A). The appellant m ust make this showing by a preponderance of the evidence. Forest v. Merit Systems Protection Board , 47 F.3d 409 , 410 (Fed. Cir. 1995). Here, the appellant did not establish that he exhausted his VEOA claim over the Training Supervisor nonselection with the DOL. Indeed, other than listing the name of the selectee and a bin number in the appellant’s ini tial appeal, there is nothing in the record concerning this nonselection. IAF, Tab 1 at 5. Therefore, we find that the appellant also failed to establish jurisdiction over this nonselection. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. 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 th is decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following addre ss: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particula r relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Ap peals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services pro vided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an a ction that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action wi th an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 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 rec eives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national o rigin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the addr ess of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 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 Circui t 717 Madison Place, N.W. Washington, D.C. 20439 3 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se 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	EDWARDS_PATRICK_DC_3330_21_0525_I_1_FINAL_ORDER_1920272.pdf	2022-04-28	null	DC-3330	NP
4,437	https://www.mspb.gov/decisions/nonprecedential/HORNSBY_RICHARD_DC_0752_15_0576_I_2_FINAL_ORDER_1920360.pdf	1 UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RICHARD HORNSBY, Appellant, v. FEDERAL HOUSING FINA NCE AGENCY, Agency . DOCKET NUMBER DC-0752 -15-0576 -I-2 DATE: April 28, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 David H. Shapiro , Esquire, Washington, D.C., for the appellant . Debra L. Roth , and Christopher J. Keeven , Washington, D.C., for the agency . BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, which reversed the appellant’s removal on a charge of conduct unbecoming a Federal manager . For the reasons discussed below, we GRANT the agency’s petition for review , REVERSE the administrative judge’s finding that the agency 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Boar d and administrative judges are not required to follow or distinguish them in any future decisions. In contra st, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 failed to prove the charge, and AFFIRM the administrative judge’s finding that the appellant failed to prove his affirmative defense . The appellant’s removal is SUSTAINED. BACKGROUND ¶2 Effective December 5, 2011, the agency appointed the appellant to the Chief Operating Officer (COO) position . Hornsby v. Federal Housing Finance Authority , MSPB Docket No. DC-0752 -15-0576 -I-1, Initial Appeal File (IAF) , Tab 6 at 89. The appellant reported directly to the agency’s Acting Director , E.D., until January 6, 2014, when the agency appointed another individual as Director . Id. at 55. Thereafter, the appellant reported directly to the Director , and E.D. returned to his prior position as Senior Deputy Director for the agency’s Division of Housing, Mission, and Goals until April 30, 2014 , when he retired from Federal service . IAF, Tab 28 at 48; Hornsby v. Federal Housing Finance Authority , MSPB Docket No. DC-0752 -15-0576 -I-2, Appeal File (I -2 AF), Hearing Transcript, Day 1 (HT1) at 155-56, 173, 228, 272 (testimony of E.D. ). ¶3 Although he no longer supervised the appellant once the Director took office, E.D. was responsible for issuing the appellant’s 2013 performance evaluation because he had been the appel lant’s immediate supervisor for the 2013 rating period. HT1 at 173-74 (testimony of E.D. ); Hearing Transcript, D ay 2 (HT2) at 203-04 (testimony of the Director). In March 2014, E.D. gave the appellant a performance rating for 2013 of “Fully Successful ,” which precluded him from receiving a n executive bonus.2 IAF, Tab 6 at 74-88; HT1 at 176-77, 199 (testimony of E.D.). ¶4 As COO, the appellant was the immediate supervisor of several agency office directors, including the Director of the Office of Human Resource Management (HR). IAF, Tab 5 at 93. On April 28, 2014, the HR Director notified the agency’s Office of General Counsel (OGC) that the appellant had 2 The ap pellant’s performance rating for 2012 was “Outstanding.” IAF, Tab 6 at 92-97. 3 made statements to him earlier in the month indicating that the appellant might harm E.D. and commit suicide . HT1 at 423-24 (testimony of the HR Director). Based on these alleged statements, t he agency removed the appellant from the workplace on April 28, 2014, and placed him on administrative leave. IAF, Tab 5 at 88. The appellant was arrested on April 30, 2014, and charged with one felony count of threatening to injure a person . Id. The charge w as subsequently reduced to two misdemeanor counts of attempted threats to do bodily harm. Id. On November 20, 2014, the appellant was acquitted of the criminal charges. IAF, Tab 25 at 20, 29. ¶5 In the meantime, the agency’s Office of Inspector General ( OIG ) investigated the appellant ’s alleged statements about harming E.D. , as well as other complaints it had received regarding the appellant’s conduct, including allegations that he had interfered with the agency’s equal employment opportunity (EEO) process. IAF, Tab 5 at 447-52.3 In July 2014, the agency’ s Acting Inspector General issued a memorand um to the Director detailing the results of OIG’s investigation. Id. at 447-49. On October 6, 2014, the Director issued a notice proposing to suspend the appellant indefinitely. Id. at 88. ¶6 Following the appellant’s acquittal, t he Director asked OGC to provide him “all information that was available ” about the appellant so that he could decide whether t he appellant should be allowed to return to work. HT2 at 236 (testimony of the Director). After receivi ng this information, the Director issued a December 19, 2014 notice rescinding the proposed indefinite suspension and proposing to remove the appellant based on a charge of conduct unbecoming a Federal manager. IAF, Tab 5 at 88-96. The charge was support ed by 18 specifications. Id. at 89-92. 3 As part of its file, the agency submitted three pages of a five -page July 23, 2014 memorandum from the Deputy Inspector General for Investigation to the Acting Inspector General regarding the appellant’s alleged interference in the EEO process and retaliation. IAF, Tab 5 at 450-52. Due to an apparent error, the agency omitted pages 2 and 4 of the memorandum. 4 ¶7 The appellant provided oral and written responses to the proposed removal. IAF, Tab 5 at 38-87. By letter dated March 19, 2015, the Director4 sustained all of the specifications and the agency removed the appellant effective March 21, 2015 . Id. at 22, 27-33. ¶8 The appellant filed a Board appeal challen ging his removal and raising an affirmative defense of retaliation for his prior EEO activity . IAF, Tab 1 at 4. In support of his affirmative defense, the appellant alleged retaliat ion for filing an EEO complaint and for participating in the settlement of an HR employee’s EEO complaint in his capacity as the agency’s EEO settlement officer. IAF, Tabs 17, 19. The appellant’s initial appeal was dismissed wit hout prejudice to refiling and later, automatically refiled. I -2 AF, Tabs 1-2. ¶9 Following a 5 -day hearing, the administrative judge issued an initial decision that reversed the appellant’s removal, finding that the agency failed to prove any of the specifica tions supporting the charge. I -2 AF, Tab 17, Initial Decision (ID) at 1, 10, 12, 16. The administrative judge also found that the appellant failed to prove his affirmative defense. ID at 16-17. Because the administrative judge reversed the rem oval action, she ordered the agency to cancel the removal and retroactively restore the appellant with back pay plus interest. ID at 17-18. The initial decision did not address the issue of interim relief. See 5 C.F.R. § 1201.111 (b)(4) (stating that , if the appellant is the prevailing party, the initial decision shall contain a statement as to whether interim relief is provided) . ¶10 The agency has filed a petition for review, the appellant has filed a response to the petition for review, and the agency has filed a reply to the appellant’s response.5 Petition for Review (PFR) File, Tabs 5, 12 -13. The appellant also has 4 The Director was both the proposing and the deciding offici al. IAF, Tab 5 at 33, 96. 5 Neither of the parties has challenged the administrative judge’s finding that the appellant failed to prove his affirmative defense of EEO reprisal , and we di scern no reason to disturb this finding. 5 filed a request for an order of interim relief, and the agency has filed a response in opposition to the request. PFR File, Tabs 7, 11. ANALYSIS The appellant’s request for interim relief ¶11 Under 5 U.S.C. § 7701 (b)(2), if the appellant is the prevailing par ty, the initial decision will provide appropriate interim relief to the appellant effective upon the date of the initial decision and remaining in effect until the date of the The Age Discrimination in Employment Act states that “personnel actions . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a (a). Similarly, title VII requires that such actions “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e -16(a). In Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶¶ 48-50 (2015), clarified on other groun ds by Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 , ¶¶ 30-31 (2016), the Board adopted the analytical framework of Mt. Healthy City School District Board of Education v. Doyle , 429 U.S. 274 (1977), for analy zing claims arising under title VII. The Board in Savage held that it first inquires whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage , 122 M.S.P.R. 612 , ¶ 51. Such a showing is sufficient to establish that the agency violated title VII. Id. If the appellant meets her burden, the Board then inquires whether the agency has sho wn by preponderant evidence that it still would have taken the contested action in the absence of the discriminatory or retaliatory motive. Id. If the agenc y makes that showing, its title VII violation will not require reversal of the action. Id. Afte r Savage was decided, the Supreme Court interpreted the language in 29 U.S.C. § 633a (a) in Babb v. Wilkie , 589 U.S. ___, 140 S. Ct. 1168 (2020). The Court held that to obtain “injunctive or other forward -looking relief,” the plaintiff must show that age discrimination “play[ed] any part in the wa y a decision [was] made.” Babb , ___ U.S. at ___, ___, 140 S. Ct. at 1173 -74, 1177 -78. However, a plaintiff “must show th at age discrimination was a but -for cause of the employment outcome” to obtain “reinstatement, backpay, . . . or other forms of relief related to the end result of an employment decision.” ___ U.S. at ___, 140 S. Ct. at 1177 -78. Thus, under both Savage and Babb , some relief is available if the prohibited consideration was a motivating factor in the challenged personnel action, but full relief is available only if the pro hibited consideration was a but -for cause of the action. Although Savage and Babb appear to diverge on the question of which party has the burd en to prove or disprove but -for causation, we need not decide in this case w hether the analytical framework applied in Savage must be revised in light of Babb. Because the appellant here failed to prove his initial burden that a prohibited factor played any part in the agency’s decision, we do not reach the question of whether EEO reprisal was a but-for cause of that decision. 6 final order of the Board on any petition for review unless, among other things, the administrative judge determines that granting interim relief is not appropriate. 5 C.F.R. § 1201.111 (c)(1). The appellant asserts on review that, because he is the prevailing party in this appeal and there has been no determination that granting interim relief would be inappropriate, he is entitled to interim relief. PFR File, Tab 7 at 5. He further asserts that, pursuant to 5 U.S.C. § 7701 (b)(2), he is entitled to the relief that the agency was ordered to provide him in the initial decision , i.e., cancellation of his removal and restoration to his position effective the date of his r emoval. Id.; ID at 17. ¶12 Contrary to the appellant’s contention, 5 U.S.C. § 7701 (b)(2)(A) and the Board’s regulations governing interim relief provide that the effective date of such relief is the date of the initial decision, not the date of the adverse action. See 5 C.F.R. §§ 1201.111 (b)(4), (c)(1) -(2). In any event, the appellant’s arguments regarding interim relief are now moot because interim relief is in effect only pending the disposition of a petition for review. See 5 U.S.C. § 7701 (b)(2)(A) ; Garcia v. Department of State , 106 M.S.P.R. 583, ¶ 7 (2007). Accordingly, we deny the appellant’s request for interim relief .6 The charge ¶13 On review, the agency challenges the administrative judge’s findings that it did not prove any of the specifications supporting the charge, and it asserts that it proved every specification. PFR File, Tab 5. A charge of conduct unbecoming 6 As a part of the initial decision, an interim relief order is subject to challenge in a petition for review or cross petition for review. Merino v. Department of Justice , 94 M.S.P.R. 632 , ¶ 6 (2003); Brown v. U.S. Postal Service , 54 M.S.P.R. 275 , 277 (1991). Because the appellant did not file a petition for review or cross petition for review of the initial decision, we find that his failure to do so is an additional basis for denying his request for in terim relief. See Thompson v. Department of the Air Force , 104 M.S.P.R. 529 , ¶ 7 (2007). Even if we were to construe the req uest as a cross petition for review, the administrative judge’s failure to address interim relief in the initial decision was not reversible error because we find that the appellant is not entitled to any relief in this case. See Marshall -Carter v. Depart ment of Veterans Affairs , 94 M.S.P.R. 518 , ¶ 14 n.2 (2003), aff’d , 122 F. App’x 513 (Fed. Cir. 2005). 7 has no specific elements of proof; the agency establishes the charge by proving the appellant committed the acts alleged under this broad label. See Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010). The agency also must prove that the conduct was unattractive, unsuitable, or detracted from the appellant’s character or reputation. Miles v. Department of the Army , 55 M.S.P.R. 633, 637 (1992) . ¶14 For ease of discussion, we have divided the specifications into two groups based on the administrative judge ’s reason for finding that the agency failed to prove the specification. The first group consists of specifications 5-11 and 18. The administrative judge found that the appellant engaged in the conduct described in these specifications; however, it was not conduct unbecoming a Federal manager. ID at 14-16. As for the second group , i.e., specifications 1-4 and 12 -17, t he administrative judge found that the agency failed to prove that the conduct described in these specifications occurred.7 ID at 7-10, 1 2-14. We first consider specifications 5 -11 and 18. Specification s 5 and 6 ¶15 Specifications 5 and 6 involve comments that the appellant made about EEO complaints during meetings with various agency officials in 2012. IAF, Tab 5 at 90. In specification 6, the a gency alleged that on September 7, 2012, the appellant told a group of agency employees —including the EEO Director, the HR Director , the HR Deputy Director, and agency attorneys —that employees should not be allowed to make anonymous EEO complaints and that EEO complainants should have more “skin in the game. ” Id. Yet notes from the meeting appear to show that the appellant’s remarks followed the EEO Director describing in the meeting how resolving EEO complaints is more difficult when 7 Regarding specification 12, which involved the appellant’s alleged threats to outsource the agency’s HR function, the administrative judge further found that, even if the appellant had committed the specified conduct, it would not constitute conduct unbec oming a Federal manager. ID at 13 n.14. 8 the complainants are anonymous. IAF, Tab 28 at 87. Thus, the appellant sharing his opinion on this matter does not necessarily seem out of place. In specification 5, the agency alleged that i n late August or early September of 2012, the appellant told the a gency’s EEO and Diversity Director and an EEO Counselor that he did not believe any of the complaints about the HR Deputy Director, and that if there were any more complaints about her, there would be “serious consequences,” or words to that effect. Id. This allegation is in fact quite troubling, as such a statement expresse s retaliatory intent and could clearly have a chilling effect in the agency. Nevertheless , as the administrative judge noted of both specifications , the agency failed to impose discip line on the appellant when the remarks were made in 2012, instead merely taking the remedial step of advising the appellant of the legal and policy importance of allowing employees to file anonymous internal complaints. ID at 14. Given these circumstance s, we find no reason to disturb the administrative judge’s finding s that the agency failed to prove specification s 5 and 6. Specification 7 ¶16 In specification 7, the agency alleged that , during a n April 22, 201 3 meeting with a Senior Economist who had sent the appellant an email seeking clarification about pay raises, the appellant held up a copy of the email and said, “[L]ooking at this email . . . I found it [expletive] offensive. ” IAF, Tab 5 at 90, Tab 6 at 63-64. The agency further stated that when the Senior Economist responded by saying that he had to leave because the appellant had just cursed at him, the appellant apologized, and the employee stayed. IAF, Tab 5 at 90. ¶17 In finding that the agency failed to prove this specification, the administrative judge reasoned as follows: “Most adults curse at least occasionally and [F]ederal managers are adults. ” ID at 15. The administrative judge found that “a single instance of uttering the word ‘[expletive ]’ in this context, especially if one apologizes afterward, is not conduct unbecoming a [F]ederal manager.” Id. 9 ¶18 Based on our review of the record, we find that the behavior described in specifica tion 7 is conduct unbecoming a Federal manager. The Board h as frequently held that rude, discourteous, and unprofessional behavior in the workplace is outside the accepted standards of conduct reasonably expected by agencies and can be the subject of discipline. See Holland v. Department of Defense , 83 M.S.P.R. 317, ¶¶ 10-12 (1999) (sustaining a removal for rude and discourteous behavior); Wilson v. Department of Justice , 68 M.S.P.R. 303, 309-10 (1995) (sustaining a removal for disrespectful conduct and the use of insulting, abusive language). Although an employee may be allowed more leeway with disrespectful conduct in “certain emotional, confrontational contexts,” the conduct at issue in this specification occurred in a normal employment setting where the appellant should have expected normal standards of conduct to appl y. See Hamilton v. Department of Veterans Affairs , 115 M.S.P.R. 673, ¶¶ 11, 13 (2011). Moreover, the Board has held that, in a conduct unbecoming charge, an agency can hold a supervisor to a higher standard of behavior than other employees. See Ray v. Department of the Army , 97 M.S.P.R. 101, ¶ 58 (2004), aff’d , 176 F. App’x 110 (Fed. Cir. 2006) ; Special Counsel v. Zimmerman , 36 M.S.P.R. 274, 293 (1988) (stating that, because the appellant was a super visor , he is held to a higher standard of conduct than subordinate employee s and should set an example for other employees to follow ). Accordingly, we find that the agency proved sp ecification 7 of the charge . Specification 8 ¶19 In specification 8, the agency alleged that, on several occasions, the appellant made remarks about specific employees in inappropriate settings and/or in the presence of employees who should not have heard these comments. IAF, Tab 5 at 90-91. This specification consists of three allegations: (1) during a November 13, 2013 meeting with employees from various offices, including Facilities Operations and OGC , the appellant stated in front of every one in attendance that a specific Senior Facilities Management Specialist (FMS) should 10 be put on a performance improvement plan (PIP) ; (2) during a March 26, 2014 meeting with the Manager of Contracting Operations (MCO), the appellant made a comment about a specific Senior Management Analyst who had filed an EEO complaint against the agency , stating something to the effect that the employee , who did not work in Contracting Operations, had a “situation that was bringing outside people into the agency ”; and (3) on other occasions, the appellant made remarks in front of the MCO about the performance of employees that she did not supervise, such as words to the effect that, “you can be sure this ”8 will negatively “affect [the Chief Information Officer’s ] rating .”9 Id. (brackets as in the original ). ¶20 The administrative judge found that “while criticizing one employee in front of others is not a management best practice, under the circumstances described in the record it is also not conduct unbecoming a [F]eder al manager.” ID at 15. The administrative judge does not identify the basis for her conclusion that the appellant’s critici sm of specific employees in front of other employees was not conduct unbecoming. ID at 15; see Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (stating that a n initial decision must identify all material issues of fact and law, summarize the e vidence, resolve issues of credibility, and include the administrative judge ’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests ). Consequently, t o determine whether the agency proved specification 8, we have consider ed the context in which the appellant made the statements at issue in this specification . 8 The record shows that the appellant was referring to the allegations in the MCO’s grievance against the agency’s Chief Information Officer (CIO), who reported directly to the appellant. Hearing Transcript, Day 4 (HT4 ) at 265 (testimony of the appellant). In her grievance, the MCO claimed that the CIO and some members of his staff had created a hostile work environment. Hearing Transcript, Day 3 ( HT3 ) at 250 (testimony of the MCO). 9 The proposal notice and decision letter incorrectly identify the CIO as the “Chief Operating Officer.” IAF, Tab 5 at 30, 91. 11 ¶21 Based on our review of the record, we find that the appellant did not engage in conduct unbecoming either by stating that the Senior FMS should be put on a PIP or by telling the MCO that the allegations in her grievance against the CIO would be reflected in his performance evaluation. During his testimony, the appellant explained that he made the se statement s while discussing t he MCO’s allegations against the Senior FMS and the CIO . Specifically, the appellant testified that, during the November 13, 2013 meeting, the MCO alleged that the Senior FMS had communicated with a bidder during a period when he was not allowed to do so , and, in response, he stated that if this allegation were true, then the Senior FMS should be held accountable and placed on a PIP. Hearing Transcript, Day 4 ( HT4 ) at 259, 261 (testimony of the appellant). The appellant similarly testified that, while di scussing the MCO’s grievance against the CIO, he told the MCO that the allegations in her grievance , if true, would negatively affect the CIO’s performance evaluation. Id. at 265. Thus, the appellant made these statements to explain how the agency would address the MCO’s allegations against other employees if they were proven . Given the se circumstances, we find that these statements were not improper . ¶22 We also find, however, that the appellant engaged in unbecoming conduct during his March 26, 2014 meeting with the MCO by telling her that a specific employee had filed an EEO complaint . IAF, Tab 6 at 69. The record indicates that the appellant made this statement during a discussion about outsourcing information technology services to illustrate that one advantage of outsourcing is that the agency does not have to deal with personnel matters involving services that have been outsourced . IAF, Tab 5 at 101-02, Tab 6 at 69; Hearing Transcript, Day 3 ( HT3) at 244-45, 285 -86 (testimony of t he MCO ).10 The appellant clearly could have made the same point without revealing the name of 10 The appellant testified that he did not remember making any statements about the EEO complainant to the MCO, but conceded that “it may have happened.” HT4 at 263-64 (testimony of the appellant). 12 an EEO complainant . Informing the MCO that a specific employee had filed an EEO complaint demonstrates poor judgment and is clearly unsuitable, particularly given the appellant’s position as COO. Accordingly, we find that the agency proved this part of specification 8. See Green v. Department of the Navy , 61 M.S.P.R. 626, 633 n.10 (explaining that portions of a specification that constitute individual allegations of misconduct under a charge may be independently sustained), aff’d , 36 F.3d 1116 (Fed. Cir. 1994) (Table). Specification 9 ¶23 In specification 9, the agency alleged that, during a meeting with E.D. in late November 2013, the appellant became agitated when E.D. questioned him. IAF, Tab 5 at 91, Tab 22 at 24. The administrative judge found , and we agree, that “becoming agitated” is not conduct unbecoming a Federal manager. ID at 15. Specification 10 ¶24 In specification 10, the agency a sserted that, during a February 20, 2014 meeting with several employees about the National Mortgage Database (NMD),11 the a ppellant placed his hand over the NMD Project Director’s mouth to prevent him from making further comments. IAF, Tab 5 at 91. In addressing this specification, the administrative judge noted that neither the appellant nor the Project Director remember ed the appellant engaging in such conduct ; however, it “made a big impression ” on the lead counsel for the NMD project . ID at 15 (citing Hearing Compact Disc (CD) (testimony of the appellant, the Project Director, and the lead counsel )); HT2 at 332-35 (testimony of the lead counsel); HT3 at 359 (testimony of the Project Director); HT4 at 273-74 (testimony of the appellant) . The administrative judge concluded that the alleged conduct 11 The NMD is a resource that contains information about mortgages throughout the United States. HT3 at 245-48 (testimony of the NMD Project Director). The record indicates that about 20 people attended the meeting, including the General Counsel and the lead counsel for the NMD project. IAF, Tab 5 at 98; HT2 at 323, 330 -31 (testimony of the lead counsel); HT3 at 380 (testimony of the Project Director). 13 occurred; however, it probably was not a “big deal” to the Project Di rector, given his testimony that he “tends to need to be silenced” and that the appellant was his friend . ID at 15; HT3 at 358 (testimony of the Project Director). The administrative judge found that , under these circumsta nces, the appellant’s conduct wa s not unbecoming. ID at 15. ¶25 Although the Project Director was not offended by the appellant’s actions, we find that it was improper and unsuitable for the appellant —who was the Project Director’s immediate supervisor as well as COO —to place his hands over the Project Director’s mouth to prevent him from speaking during a meeting. HT3 at 344, 359-60 (testimony of the Project Director) . Therefore, we find that the agency proved this specification. Specification 11 ¶26 Specification 11 involves a st atement that the appellant made in late February or early March of 2014 , to the NMD’s lead counsel and another attorney , both of whom had drafted a memorandum to the Director address ing the agency’s potential liability for data breaches of the NMD. IAF, Tab 5 at 91, 98 (written declaration of the lead counsel ). The agency alleged that the appellant engaged in conduct unbecoming by telling the attorneys that issuing the memo randum might be a “career ender. ” Id. at 91. The agency further stated that the lead counsel interpreted the appellant’s statement as referring to ending the career s of both attorneys, who then remov ed the information at issue from the memorandum. Id. at 91, 98. The appellant testified that he was referring to his own career when he used the term “career ender.” Id.; HT4 at 277-79 (testimony of the appellant). ¶27 The administrative judge found that t elling a staff attorney that the contents of a memorandum could end a career is not conduct unbecoming a Federal manager. She did not provide a basis for her conclusion . ID at 15-16. The agency challenges this finding on review, arguing that the attorneys “reasonably understood” the appellant’s statement as a threat to their careers and felt 14 compelled to modify the memorandum to “dimin ish their analysis” of the risks associated with the NMD as a direct result of this “intimidating” statement . PFR File, Tab 5 at 38-39. ¶28 Regardless of whose career might be allegedly ended by the inclusion in the memorandum of the information in question , it is understandable that the attorneys felt intimidated into removing the information. The record indicates that the attorneys had already revised the memorandum several times, but that the appellant continued to be unhappy with the memorandum includin g information on potential agency liability. Given the appellant’s inappropriate behavior on multiple occasions and the alleged threatening statements the appellant made in 2012 regarding EEO complaints, we find believable the attorneys’ allegations that, by his “career ender” remark, the appellant was intimidating the m regarding their careers and not his own. We believe it is reasonable for an agency to conclude that “an atmosphere of intimidation is not conducive to the productive flow of ideas and communication that is vital” to the agency, IAF, Tab 5 at 94, particularly as it relates to information about potential agency liability . Thus, we find that the conduct specified in charge 11 constituted conduc t unbecoming a Federal manager and that the agency proved this specification . Specification 18 ¶29 In specification 18, the agency alleged that, after he became aware of his “Fully Successful” performance rating, the a ppellant ask ed the HR Director to negot iate with E.D. on his behalf for a higher rating so that he would receive a bonus. IAF, Tab 5 at 92. The agency further alleged that the appellant sent the HR Direct or the following email on April 24, 2014: Please make sure [ E.D. ] does not give me a partial bonu s. I want the goose egg that reflects the unfair rating he gave me. If he suggest s a 5 or 10 to further insult me I want it stopped before he lea ves. I want [the bonus] 0 to reflect what he told me to my face. If he does otherwise I will seek legal counsel . 15 He continues not to resolve my [job performance plan] escalation ! He has been nonresponsive . There is no excuse for hi s behav iour. Id.; IAF, Tab 6 at 59. ¶30 The administrative judge found that, contrary to the specification, the HR Director testified that he volunteered to intervene on the appellant’s behalf with E.D. ID at 16 n.16 (citing Hearing CD). The administrative judge further found that “nothing abo ut the contents of the email was unattractive or unsuitable, detracted from his character or reputation, or created an unfavorable impression. ” ID at 16. ¶31 The record does not support the administrative judge’s finding that the HR Director testified that he volunteered to negotiate with E.D. for a better performance rating for the appellant.12 During the Board hearing and the criminal trial in this matter , as well as in his written statement dated April 28, 2014, and his interview with OIG agents the same day, the HR Director consistently stated that the appellant had asked him to negotiate with E.D. to improve the appellant’s performance rating. IAF, Tab 5 at 316-17 (crimin al trial testimony of the HR Director) , Tab 6 at 33, 52 ; HT1 at 356-58; HT2 at 148-49, 151-52 (testimony of the HR Director). Moreover, during the appellant’s criminal trial, the HR Director responded as follows when asked whether he volunteered to negoti ate with E.D. to improve the appellant’s performance rating: “ That’s not an assignment I would vo lunteer for. ” IAF, Tab 5 at 317 (criminal trial testimony of the HR Director) . This statement is consistent with the HR Director’s testimony at the hearing that he felt awkward asking E.D. to improve the appellant’s performance rating. HT2 at 148-49 (testimony of the HR Director). Thus, the record shows that the appellant asked the HR Director to intervene with E.D. to improve his performance rating . 12 This finding also appears to contradict the administrative judge’s determination that the appellant “entreated [the HR director] to intervene” as part of his “campaign to change [E.D.’s] mind about the rating.” ID at 3 (citing IAF, Tab 6 at 59, 73; and testimony of the appellant, E. D., and the HR Director). 16 ¶32 We find that it was improper for the appellant to do so. As previously noted, the appellant was the HR Director ’s immediate supervisor . Thus, in making this request, the appellant was placing the HR Director i n the untenable position of either refusing his supervisor’s request or negotiat ing with his former second -level supervisor for a better performance rating for his supervisor . Further, w hile the HR Director ’s office was responsible for processing performance ratings and bonuses, HT2 at 166-67 (testimony of the HR Director), there is no evidence that HR Director’s duties vis-à-vis performance ratings entailed negotiating better ratings for agency employees . Given these circumstances, we find that it was clearly unsuitable for the a ppella nt to ask the HR Director to unde rtake such a negotiation on his behalf . ¶33 We also disagree with the administrative judge’s finding that there was nothing unsuitable about the appellant’s email to the HR Director. ID at 15. In the email, t he appellant ma de disparaging remarks about E.D. t o his subordinate, stating that E.D. ’s behavior was inexcusable . IAF, Tab 6 at 59. The Board and our reviewing court have held that making disparaging comments about one’s superior to a subordinate employee constitute s conduct unbecoming a Federal employee. See Guise v. Department of Justice , 330 F.3d 1376 , 1380 (Fed. Cir. 2003) (affirming the removal of a su pervisory correctional officer charged with making disparaging remarks to subordinate employees regarding the associate warden); Ray, 97 M.S.P.R. 101, ¶ 58 (finding that a supervisor’s disparaging comment s about agency officials, including his superior, which were directed to a subordinate agency employee with no apparent need to know the appellant’s views regarding those officials , consti tuted conduct unbecoming a Federal employee) . We therefore find that the agency proved specification 18. Specifications 1 -4 and 12 -17 ¶34 We next consider the second group of specifications. S pecifications 1-4 involve the appellant’s alleged statem ents to the HR Director about E.D. , which 17 the HR Director reported to OGC on April 28, 2014. IAF, Tab 5 at 89-90, Tab 6 at 34. In these specifications, the agency alleged as follows: (1) On April 3, 2014, the appellant said to the HR Director, “I can understand how someone could go postal, if I decide to take myself out I will walk into [ E.D. ’s] office and bl ow his brains out and then kill myself .” (2) On April 3, 2014, the appellant also tol d the HR Director that he might not “blow [E.D.’s] brains out” but would shoot him in the kneecap a nd say, “don’t [expletive] with me.” (3) On April 24, 2014, the appellant told the HR Director that E.D. had done nothing about the appellant’s performance rating and made the following statement in reference to E .D: “[T]hat son of a [expletive] is not in his office today but if he was [I] would go there and rip him limb by limb from his office .” (4) On April 24, 2014, the appellant indicated to the HR Director that he would make a scene at E.D. ’s retirement par ty and tell everyone the kind of person that E.D. really was, but that he would not physically hurt E.D. at the party . IAF, Tab 5 at 89-90. ¶35 In specifications 12 -17, the agency allege d as follows: (12) On several occasions, w hen the appellant could not hire someone he wanted or an HR employee would complain to the Inspector General or E.D. about the HR Deputy Director, he told the HR Director that he would outsource the HR function . (13) When the MCO complained to the appellant about outsourcing contract services involving information technology to the Department of the Interior ’s Business Center, the appellant frequently told the HR Director that he would outsource the MCO’s office if she did not stop complaining . (14) On April 3, 2014, the appe llant told the HR Director that he wanted an HR employee fired because the appellant saw her having breakfast with E.D. , although he had previously spoken to the HR Director about converting that employee to a permanent appointment because of her success w ith the agency’s recruiting program . (15) Between April 8 and 24, 2014, the appellant told the HR Director, “I can ’t wait until the 30th when the Pope [referring to E.D. ] leaves the building .” 18 (16) The appellant lost his composure during an April 22, 2 014 meeting with various agency officials and expressed his desire to fire anyone who had complained about him. (17) The appellant repeatedly expressed his hatred of E.D. to the HR Director and, on multiple occasions, including April 22, 2014, told the HR Director in a very serious tone that he wanted to jump out o f his window or blow his brains out. Id. at 91-92. ¶36 In the initial decision, the administrative judge noted that the appellant and the HR Director provided conflicting testimony regarding wh ether the appellant engaged in the conduct described in the se specifications . ID at 7-8, 12-14. She also noted that the HR Director provided the only evidence in support of several specifications , including specifications 1-4, which were based on alleged conversations during which only the appellant and the HR Director were present. Id. at 8, 14. Citing the Board’s decision in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987) ,13 the administrative judge found that the appellant’s denial that he made t he statements in specifications 1-4 was “at least as credible” as the HR Director’s accusations that he did and that, therefore, the agency failed to prove these specifications by preponderant evidence. ID at 8. The administrative judge similarly found that the record did not contain pre ponderant evidence supporting specifications 12-17. ID at 12-14. In making this finding, she explicitly credited the appellant’s testimony denying the cond uct described in specifications 14 and 15. ID at 13. 13 In Hillen , the Board held that, to resolve credibility issues, an administrative judge must identify the factual questions in dispute, summarize the evidence on each disputed question, state which version he believes, and explain in detail why he found the chosen version more credible, considering such factors as: (1) the witness’s opportunity and capacity to observe the event or act in question; (2) the witness’s character; (3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s version of events by other evidence or its consistency with other evidence; (6) the inherent improbability of the witness’s version of events; and (7) the witness’s demeanor. Hillen , 35 M.S.P.R. at 458. 19 ¶37 The a gency argues on review that the Board should not defer to the administrative judge’s credibility determinations because the initial decision makes no reference to witness demeanor. PFR File, Tab 5 at 22. The agency asserts that the Board should therefore reweigh the evidence and substitute i ts own judgment on the issue of whether the appellant’s testimony is more credible than the HR Director’s. Id. at 22-23. The agency contends that applying the Hillen factors to the evidence show s that the HR Director is “far more credible ” than the appel lant. Id. at 28. ¶38 This argument is unpersuasive. 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, and the Board may overturn such credibility findings only when it has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002). It is well established that when , as here, an administrative judge has heard live testimony, her credibility determinations must be deemed to be at least implicitl y based upon the demeanor of the witnesses. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367 , 1373 (Fed. Cir. 2016) (finding that the Board must defer to an administrative judge’s demeanor -based credibility determinations, “[e]ven if demeanor is not explicitly discussed”); Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009). Thus, the Board may overturn credibility findings only when it has “sufficiently sound” reasons for doing so , as when the administrative judge’s findin gs are incomplete, inconsistent with the weight of the evidence, and do not reflect the record as a whole. Rapp v. Office of Personnel Management , 108 M.S.P.R. 674, ¶ 13 (2008) . ¶39 Based on our review of the record, we find that the agency has not established that there are sufficiently sound reasons for overturning the administrative judge’s credibility determinations. 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 consi dered the evidence as a whole, 20 drew appropriate inferences, and made reasoned conclusions). In the initial decision , the administrative judge explain ed in detail why she did not credit the HR Director’s testimony that the appellant engaged in the alleged misconduct. ID at 8-10, 12 -14. For example, the administrative judge found that the HR Director had a motive to fabricate the allegations se t forth in specifications 1-4 because he was under a great deal of stress in April 2014 , due to the following circumstances: (1) his employees were complaining about the HR Deputy Director; (2) he felt pressured to intervene to improve the appellant’s performance evaluation; (3) E.D., with whom he felt comfortable, was about to leave, and the additional work and uncertainty of a new Director were upon him; (4) he was in the middle of an ongoing dispute between his first - and second -level supervisors about the appellant’s performance rating; and (5) he was looking for another job. ID at 8-9. The administrative ju dge concluded that, as a result of these circumstances, the HR Director “had motive to act in an extreme manner to change his workplace dynamic.” ID at 9. ¶40 The agency argues on review that the Board should not defer to the administrative judge’s credibil ity determinations regarding specifications 1-4 because the record does not support her finding that the HR Director’s work circumstances in April 2014 , were “spectacularly stressful.” PFR File, Tab 5 at 26; ID at 9. Specifically, the agency asserts that : (1) complaints about the HR Deputy Director subsided after the HR office was reorganized in June 2013; (2) there is no evidence that the arrival of a new Director resulted in additional work for the HR Director; and (3) the HR Director was not involved in an ongoing dispute between his first - and second -level supervisors, as the Director was his second -level supervisor when he made the allegations against the appellant, and there was no dispute between his first -level supervisor (i.e., the appellant) and the Director at that time. PFR File, Tab 5 at 24-25. The agency also challenges the administrative judge’s finding that the HR Director had a motive to fabricate allegations because he was looking for a job. Id. at 25; 21 ID at 9. Instead, the agency arg ues, because the HR Director was about to leave his position, it was likely that he would not act in such a manner in his final months at the agency. PFR File, Tab 5 at 25. ¶41 Even assuming that the HR Director did not have a motive to fabricate the allega tions in specifications 1-4 based on the circumstances cited by the administrative judge, we find that this is not a sufficiently sound reason to overturn the administrative judge’s credibility determinations. The administrative judge’s conclusion that th e HR Director had a motive to fabricate these allegations was not her only reason for finding the HR Director’s testimony not credible. The administrative judge also found that the HR Director’s version of several of the events at issue did not “incorpora te logically with substantiated record evidence.” ID at 9-10. In particular, the administrative judge found that, during his testimony, the HR Director failed to satisfactorily explain why he did not tell E.D. about the appellant’s alleged statements until April 28, 2014, and why, after waiting so long, it was necessary to tell E.D. at all. ID at 10. ¶42 In assessing the relative credibility of the appellant and the HR Director, the administrative judge also found it “worth noting” that the appellant di d not incriminate himself in telephone calls that the HR Director initiated on April 28 and 29, 2014, at OIG’s request for the purpose of eliciting the appellant’s acknowledgement that he made statements about harming E.D. ID at 9 n.12; IAF, Tab 6 at 20-32, 36 -50. The administrative judge noted that, during these telephone calls, the appellant did not acknowledge that he had threatened E.D. or indicate that he knew he was being recorded. ID at 9-10 n.12. In addition, the administrative judge found that, instead of directly confronting the appellant about his alleged statements concerning E.D., as OIG had instructed him to do, the HR Director told the appellant that investigators had questioned him about comments that the appellant had made to him about h ow the appellant would “take [E.D.] out” if he ever wanted to hurt himself, and the appellant disputed that characterization. ID at 10 n.12; IAF, Tab 6 at 28. The administrative judge 22 also noted that the HR Director subsequently cut the appellant off whi le he appeared to be denying the alleged misconduct. ID at 10 n.12; IAF, Tab 6 at 29. ¶43 Moreover, the administrative judge’s credibility determinations regarding the HR Director are consistent with those of the superior court judge in the appellant’s crim inal trial. In her written opinion, the superior court judge stated that there were numerous reasons to doubt the HR Director’s credibility, including his behavior during the recorded telephone calls between him and the appellant in late April 2014 , and h is delay in reporting the appellant’s purported statements about harming E.D. and committing suicide to anyone in a position to take action to protect E.D. and the appellant. IAF, Tab 5 at 76-87. Thus, we discern no reason to disturb the administrative j udge’s credibility determin ations regarding specifications 1-4. ¶44 As for specifications 12 -17, the agency briefly argues on review that the administrative judge failed to consider “significant evidence” in finding that the record did not include preponderant evidence to support these specifications , and it asserts that the record shows that these specifications “are more likely true than not.” PFR File, Tab 5 at 32-33. This argument is essentially mere disagreement with the administrative judge’ s explained findings and credibility determinations , and provides no basis for us to reweigh the evidence or substitute our assessment of the record evidence for that of the administrative judge ; therefore, we agree with her determination that the agency failed to prove specifications 12-17. Crosby , 74 M.S.P.R. at 105-06. ¶45 In sum, we find no basis for disturbing the administrative judge’s findings that the agency failed to prove specifications 1 -6, 9, and 12-17, and two parts of specification 8. We find, however, that the agency proved specifications 7, 10, 11, and 18 , and one part of specification 8. Because we find that the agency proved these specifications, we also find that it proved the charge of conduct unbecoming a Federal manager . See Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir. 1990) (holding that when more than one 23 specification supports a single charge, proof of one or more, but not all, of the supporting specificatio ns is sufficient to sustain the charge) . Nexus ¶46 Because the administrative judge found that the agency failed to prove the charge and reversed the appellant’s removal, she did not make findings as t o whether there is a sufficient nexus between the appellant’s misconduct and the efficiency of the service , nor did she determine whether removal is a reasonable penalty. We address those issues here. It is well settled that there is a sufficient nexus b etween an employee’s misconduct and the efficiency of the service whe n, as in this case, the conduct occurred at work. Parker v. U.S. Postal Service , 819 F.2d 1113 , 1116 (Fed. Cir. 1987); Miles v. Department of the Navy , 102 M.S.P.R. 316, ¶ 11 (2006) . Therefore, we find that d isciplining the appellant for his misconduct promotes the efficiency of the service . Penalty ¶47 When examining the penalty imposed by the agency, the Board’s function is not to displace management’s responsibility or to decide what penalty it would impose, but to assure that management’s judgment has been properly exercised and that the penalty selected by the agency does not exceed the maximum limits of reasonableness. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981). When, as here, the Board sustains the agency ’s cha rge, but not all of the specifications of th e charge, the agency’s chosen penalty is entitled to deference, and the Board will review th at penalty to determine whether it is within the parameters of reasonableness. Payne v. U.S. Postal Service , 72 M.S.P.R. 646, 650 (1996) ; see generally Douglas , 5 M.S.P.R. at 305-06 (providing a nonexhaustive list of factors that are relevant to determine the appropriate penalty). If the agency ’s penalty is not reasonable, the Board will mitigate only to the extent necessary to bring it within the parameters of reasonableness, i.e., the Board will apply a max imum reasonable penalty standard. Payne , 24 72 M.S.P.R. at 651. In applying this standard, the Board will consider the agency ’s failure to sustain all of its supporting specifications. Id. That failure may require, or contribute to, a finding that the age ncy’s penalty is not reasonable. Id. Particularly pertinent to this appeal, we note that a general charge like the one here, i.e., conduct unbecoming, may be sustained when the Board finds that the appellant engaged in inappropriate behavior, even though it does not rise to the level of impropriety asserted by the agency; however, the penalty should reflect only the proven level of impropriety. See Russo v. U.S. Postal Service , 284 F.3d 1304 , 1309 -10 & n.2 (Fed. Cir. 2002) (finding that mitigating the agency’s removal action to a lesser penalty was appropriate because the linchpin for imposing the penalty of removal was the agency’s determinatio n that the appellant had made a racial comment and the Board did not find that such a comment was made) . ¶48 The seriousness of the appellant’s offense is always one of the most important factors considered by the Board in assessing the reasonableness of an agency’s penalty determination. Rosenberg v. Department of Transportation , 105 M.S.P.R. 130, ¶ 30 (2007). Here, the agency only prove d 5 of the charge’s 18 specifications . In determin ing whether removal is a reasonable penalty for the appellant’s sustained misconduct, we consider the facts and circumstances surrounding each of the proven specifi cations. See Douglas , 5 M.S.P.R. at 297 (stating that the facts and circumstances of each case are relevant to determining the penalty ). ¶49 Specifications 7 and 8 involve incidents in which the appellant made improper statements. In such cases, the Board has specifically found that we must consider the context and circumstances of the statement s in assessing the penalty. Vernon v. U.S. Postal Service , 87 M.S.P.R. 392, ¶ 22 (2000 ). Specification 7 concerns the appellant’s use of profanity to describe a Senior Economist’s email while discussing the email with him . We find that the seriousness of this misconduct is somewhat reduced because the appellant 25 immediately apologized for cursing when the Senior Economist took offense, IAF, Tab 5 at 99; and did not use profanity during the rest of the meeting, id., see Douglas , 5 M.S.P.R. at 305 (stating that the factors relevant in determining the appropriateness of a penalty include whether the offense was repeated). However, in the absence of evidence showing that profanity was commonplace i n the work setting, the appellant’s use of profanity cannot be dismissed as inconsequential. As for specification 8, while it was improper for the appellant to reveal the name of an EEO complainant to those who did not need to know this information, there was no showing that this misconduct result ed in any harm to the complainant or the agency . ¶50 We next consider specificati on 10. Although it was unsuitable for the appellant to place his hands over the mouth of the NMD Project Director during a meeting to prevent him from speaking, the appellant testified without contradiction that he and the Project Director are good friends and that the Project Director did not even remember the incident. HT4 at 274-75 (testimony of the appellant). Similarly, the Proje ct Director confirmed that he had no recollection of this incident and, in any event, stated that such conduct would not have offended him , as he and the appellant had a good relationship . HT3 at 359-60, 380-81 (testimony of the NMD Project Director). Under the circumstances described above, we find that specifications 7, 8, and 10, standing alone, do not warrant severe disciplinary action . ¶51 Specification 11 concerns the appellant’s influencing the removal of liability information from a legal memorandum by intimidating the drafting attorneys . This offen se had wide implications for the agency, including the potential of financial repercussions and negative impact on the reputation o f the agency. The misconduct on the appellant’s part appears to have been quite intentional, as the attorneys had already revised the memorandum several times but had not removed the contents with which the appellant disagreed. The misconduct was also directly related to the appellant’s duties as COO , a senior 26 role which unquestionably requires looking out for the overall interests of the agency. For these reas ons, we find that specification 11 was highly serious and , in combination with the other sustai ned specifications, provides suppo rt for significant disciplinary action . ¶52 Specification 18 concerns the appellant’s asking the HR Director to negotiate with E.D. on his behalf for a higher rating and subsequently sending the HR Director an email with disparaging comments about E.D. This misconduct is directly related to the appel lant’s duties as a supervisor and was committed for personal gain, as the appellant would have received a significant bonus if his performance rating had been higher. Douglas , 5 M.S.P.R. at 305 (stating that relevant factors in determining the appropriate ness of a penalty include whether the offense was committed for gain). For these reasons, we find that specification 18 is the most serious of the sustained specifications , providing further suppo rt for significant disciplinary action . ¶53 In assessing whet her removal is a reasonable penalty for the sustained specifications, we also have considered the following factors: the appellant’s supervisory role; his past disciplinary record; his past work record; his length of service, and the notoriety of the offe nse. As mitigating factors, we acknowledge that t he appellant has a good performance record and has not been subject to any prior disciplinary action. IAF, Tab 6 at 74-88, 92 -97. Also, while the conduct at issue in specifications 1-4 generated a signifi cant amount of press coverage, IAF, Tab 6 at 4-18, the record does not indicate that the conduct described in the proven specifications gained public notoriety. However, as aggravating factors, we note that the appellant served with the agency for only 3 years and that, as COO, the appellant was a high -ranking supervisor who occupied a position of trust and responsibility. IAF, Tab 6 at 103-05 (COO position description). Thus, the agency has the right to hold him to a higher standard of conduct for purpo ses of determining the penalty. See Edwards v. U.S. Postal Service , 116 M.S.P.R. 173, ¶ 14 (2010) (finding that agencies are entit led to hold supervisors to a higher 27 standard of behavior than nonsupervisors because they occupy positions of trust and responsibility); Walcott v. U.S. Postal Service , 52 M.S.P.R. 277, 284 (finding that an agency may hold a high -ranking supervisor to a higher standard of conduct for purposes of determining the penalty), aff’d , 980 F.2d 744 (Fed. Cir. 1992) (Table). ¶54 Although the agency failed to establish much of the specific misconduct, the specifications we do sustain are without question quite serious. Thus, b ased on the specific facts of this case and the proven level of impropriety , we find that the agency’s chosen penalty is withi n the parameters of reasonableness and that the sustained specifications warrant removal. NOTICE OF APPEAL RIG HTS14 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 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 three main possible choices of review below to decide which one applies to your particular case. If you have questions 14 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. 28 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc .uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an ap peal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neith er endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed th at you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 29 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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 re quest review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 30 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office o f Federal Operations Equal Employment Opportunity Commission 131 M Street, 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 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.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 Feder al Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 15 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. 31 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interes ted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appell ants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective w ebsites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HORNSBY_RICHARD_DC_0752_15_0576_I_2_FINAL_ORDER_1920360.pdf	2022-04-28	null	DC-0752	NP
4,438	https://www.mspb.gov/decisions/nonprecedential/CHOROSZY_ZYGMUNT_PAUL_PH_315H_16_0458_I_1_FINAL_ORDER_1919705.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ZYGMUNT PAUL CHOROSZ Y, JR., Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER S PH-315H -16-0458 -I-1 PH-315H -16-0458 -C-1 DATE: April 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Zygmunt Paul Choroszy, Jr. , Newtonville, Massachusetts, pro se. Carolyn D. Jones , Esquire, Williston, Vermont, for the agency. Elizabeth Bagby , Dallas, Texas, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed petitions for review of two initial decision s. The initial decision in MSPB Docket No. PH-315H -16-0458 -I-1 dismissed the appellant ’s appeal of his probationary termination as settled . The initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c). 2 in MSPB Docket No. PH-315H -16-0458 -C-1 found th e agency in compliance with said agreement. Generally, we grant petitions such as these only in the following circumstances: the initial decision c ontains 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 full y considering the fi lings in these appeal s, we JOIN them and conclude that the petitioner has not established any basis under section 1201.115 for granting the petition s for review. Therefore, we DENY the petition s for review. The initial decision issued in MSPB Docket No. PH-315H -16-0458 -I-1 is AFFIRMED. Except as expressly MODIFIED to VACATE the administrative judge ’s findings regarding the validity of the settlement agreement and to include an analysis on the lack of a material breach , we AFFIRM the initial decision in MSPB Docket No. PH-315H -16-0458 -C-1. BACKGROUND ¶2 On September 8, 2016, the appellant filed an appeal with the Board o f his probationary termination from the agency. Choroszy v. Department of Homeland Security , MSPB Docket No. PH -315H -16-0458 -I-1, Initi al Appeal File (IAF), Tab 1. On March 7, 2017, the appellant and the agency executed a settlement agreement resolving the appeal. IAF, Tab 48. The agency, inter alia , agreed that within 45 days from the effective date of the settlement agreement, it wou ld change the appellant ’s termination to a voluntary resignation, expunge his official personnel folder (OPF) of documents concerning the termination, and provide a neutral reference for up to 4 years. Id. at 6-7. In exchange, the appellant agreed 3 to voluntarily resign, not to seek employment or work for the Immigration and Customs Enforcement (ICE) for 4 years, and to waive all claims against the agency up to the effective date of the agreement, including his Board appeal. Id. at 4-6. The adminis trative judge issued an initial decision on March 7, 2017, dismissing the appellant ’s appeal as settled, as he found that the parties voluntarily entered into the lawful agreement and understood the terms. IAF, Tab 49, Initial Decision (ID) at 1-2. Altho ugh not specified in the agreement, the administrative judge entered it into the record for enforcement purposes. IAF, Tab 48 at 4 -9; ID at 2. ¶3 On May 12, 2017, the appellant filed a petition for enforcement with the Board ’s Northeastern Regional Office , claiming that the agency breached the settlement agreement because it did not provide him with a corrected Standard Form 50 ( SF-50) reflecting his voluntary resignation within 45 days as required by the settlement agreement. Choroszy v. Department of Ho meland Security , MSPB Docket No. PH -315H -16-0458 -C-1, Compliance File (C F), Tab 1 at 4. In this same pleading, the appellant argued that the settlement agreement was void, as it is against public policy and an adhesion contract. Id. at 4-5. The appellan t requested that the administrative judge invalidate the agreement and reinstate the appeal of his probationary termination. Id. at 5 . The administrative judge docketed the MSPB Docket No. PH-315H -16-0458 -C-1 appeal as a petition for enforcement and prov ided the parties the requisite burdens of proof and an opportunity to submit argument and evidence on the matter. CF, Tab 2 at 1-3. In its filing, the agency stated that it was in compliance with all terms of the settlement agreement. CF, Tab 3 at 5-6. The agency explained that , due to technical problems with its personnel/payroll system, it was not able to expunge the appellant ’s OPF of the termination and generate an updated SF -50 reflecting his resignation until May 8, 2017, which was 17 days beyond the date set in the settlement agreement. CF, Tab 1 at 9, Tab 3 at 5 -6. The agency averred that it 4 did not receive any employment reference inquiries about the appellant prior to May 8, 2017. CF, Tab 3 at 6, 11. ¶4 On July 26, 2017, the administrative ju dge issued an initial decision in the compliance matter , finding the agency in compliance with the settlement agreement. CF, Tab 8, Compliance Initial Decision (CID) at 1 -4. The administrative judge also found that the appellant failed to prove that the settlement agreement was invalid. CID at 5 -6. On August 29, 2017, the appellant filed a petition for review of this initial decision. Compliance Petition for Review ( CPFR) File, Tab 1. The agency responded in opposition and the appellant filed a reply. CPFR File, Tabs 4 -5. ¶5 On March 15, 2018, the Clerk of the Board advised the appellant that it also docketed his petition for enforcement in MSPB Docket No. PH-315H -16-0458 - C‑1, filed with the regional office on May 12, 2017, as a petition for review of the initial decision in MSPB Docket No. PH -315H -16-0458 -I-1, as he was challenging the validity of the settlement agreement that was the subject of the initial decision in that matter . Petition for Review (P FR) File, Tab 2 at 1 -2. The Clerk notified t he appellant that his pe tition for review in MSPB Docket No.PH -315H -16-0458 -C-1 concerning the compliance initial decision remained pending. Id. at 1 n.1. Because the petition for review in MSPB Docket No. PH-315H -16-458-I-1 appeared untimely filed , the parties were provided an opportunity to present argument and evidence on the issues of timeliness and the merits of the appellant ’s petition. Id. at 1-2. The appellant responded by seeking a waiver of the time limit to file a petition for review, citing medical reasons. PFR File, Tab 3 at 1-2. The agency responded in opposition and the appellant filed a reply. PFR File, Tabs 4 -5. 5 DISCUSSION OF ARGUME NTS ON REVIEW The two matters pending before the Board are joined. ¶6 As a preliminary matter, we note th at joinder of two or more appeals filed by the same appellant is appropriate whe n doing so would expedite processing of the cases and not adversely impact the interests of the parties. Tarr v. Department of Veterans Affairs , 115 M.S.P.R. 216 , ¶ 9 (2010); 5 C.F.R. § 1201.36 (a)(2). We find that the appellant ’s two appea ls meet this criterion , and we join them as a result. In his compliance initial decision in MSPB Docket No. PH -315H -16-0458 -C-1, the administrative judge improperly ruled on the validity of the settlement agreement. ¶7 In his compliance initial decision in MSPB Docket No. PH -315H -16-0458 - C-1, the administrative judge addressed the appellant ’s claims that the settlement agreement was invalid . CID at 4 -6. Such an attack on the validity of a settlement agreement must be m ade through a petition for review of the initial decision dismissing the appeal as settled. Virgil v. U.S. Postal Service , 75 M.S.P.R. 109, 112 (1997); Mahoney v. Department of Labor , 56 M.S.P.R. 69 , 72 (1992). Thus, the administrative judge erred in addressing the a ppellant ’s claim , and the compliance initial decision must be modified to vacate the findings on the validity of the settlement agreement that was the subject of the initial decision in MSPB Docket No. PH -315H -16-0458 -I-1. As noted, the Clerk of the Board has docketed the appellant ’s petition for enforcement in MSPB Docket No. PH -315H - 16-0458 -C-1 as a petition for review of that initial decision. PFR File, Tab 2. We address that petition for review and the validity of the settlement agreement below. 6 The initial decision in MSPB Docket No. PH -315H -16-0458 -I-1 is affirmed, as the appellant failed to prove that the settlement agreement is invalid.2 ¶8 In his petition for review of the initial decision in MSPB Docket No. PH 315H -16-0458 -I-1, the appellant contends that the Board should invalidate the settlement agree ment . PFR File, Tab 1 at 4 -5. A party challenging the validity of a settlement agreement bears a heavy burden of showing a basis for invalidation. Schwartz v. Department of Educ ation , 113 M.S.P.R. 601 , ¶ 8 (2010). A par ty may challenge the validity of a settlement agreement if he believes it was unlawful , involuntary, or the result of fraud or mutual mistake. Id.; Wad ley v. Department of the Army , 90 M.S.P.R. 148 , ¶ 4 (2001). The appellant failed to prove any of these circumstances. ¶9 The appellant first argues that the Board should invalidate the settlement agreement because it is counter to public policy, as it contains a provision barring him from seeking employment or working for ICE for a period of 4 years. PFR File, Tab 1 at 4 -5, Tab 5 at 4 -5. However, these types of provisions are common in “clean record agreements” and are routinely recognized by the Board as valid. See, e.g., Thomas v. Department of Housing & Urban Develop ment , 63 M.S.P.R. 649, 659 (1994) (finding lawful a settlement agreement containing a provision in which the appellant agreed no t to apply for certain types of positions in exchange for a clean record and other terms ); Roane v. U.S. Postal Service , 53 M.S.P.R. 1 , 2-3 (1992) (noting that the valid settlement agreement contained a provision barring the appellant from employment with the agency in the future); Laranang v. Department of the Navy , 40 M.S.P.R. 233, 236 n.4 (1989) (holding that a provision barring the appellant from seeking or accepting employment with the 2 The Clerk of the Board notified the parties that it appeared that the appellant did not timely file his petition for review of the initial decision in MSPB Docket No. PH -315H - 16-0458 -I-1. PFR File, Tab 2 at 1 -2. B oth parties filed pleadings on the issue. PFR File, Tabs 3 -4. However, based on the disposition of the appellant’s petition for review in that appeal, we need not resolve the issue of whether he established good cause for an untimely filing of his petiti on for review. 7 agency for 2 years was a valid part of the agreement). Contrary to the appellant ’s position, p ublic policy favors settlement agreements in administrative and civil actions. Clay v. Department of the Army , 47 M.S.P.R. 406 , 408 (1991). The appellant ’s argument provides no basis to dis turb the initial decision ’s dismissal of his appeal . ¶10 The appellant also argues on review that the settlement agreement should be invalidated because it is an adhesion contract, as the agency was in a p osition of power and gave him no choice but to sign the agreement or to never again be employed with the Federal Government . PFR File, Tab 1 at 4 . To establish that a settlement was a result of coercion or duress, a party must prove that he involuntarily accepted the other party ’s terms, that circumstances permitted no alternative, and that such circumstances wer e the result of the other party ’s coercive acts . Candelaria v. U.S. Postal Service , 31 M.S.P.R. 412 , 413 (1986). The record demonstrates that the appellant voluntarily accepted the terms of the agreement, as evidenced by the language of the agreement itself, which states that the parties “entered into it voluntarily and of their own free wil l, without duress or coercion. ” IAF, Tab 48 at 8. Furthermore, t he agreement provides that “[t]he parties acknowledge that they have both participated in the drafting of the terms of this [a] greement.” Id. The agreement also provides that the parties agreed that they had “an opportunity to consult with counsel.” Id. ¶11 The appellant had an alternative to the agreement , as he could have continued with the appeal of his termination. The appellant ’s contention that if he did not sign the agreement he would not be employable with the Federal Government is not supported by any evidence . PFR File, Tab 1 at 4, Tab 5 at 3. The appellant then apparently argues the converse , by stating that entering the agreement has prevented him from all F ederal employment. PFR File, Tab 1 at 4, Tab 5 at 4. We find unpersuasive the appellant ’s arguments to invalidate the agreement on these gro unds. 8 ¶12 On review, the appellant claims that he involuntarily accepted the terms of the settlement agreement due to the administrative judge ’s “deep seated favoritism toward the [a]gency,” as demonstrated by the administrative judge ’s failure to rule on the appellant ’s various motions. PFR File, Tab 5 at 5 . To prove this allegation, an appellant must present evidence that he involuntarily accepted the terms, that the circumstances presented no alternative, and that the circumstances resulted from the admini strative judge ’s coercive acts. Anderson v. Department of the Air Force , 51 M.S.P.R. 691 , 695 (1991). As explained herein, the evide nce establishes that the appellant voluntarily accepted the terms of the agreement and that he had an alternative route that he could have chosen. Further, the administrative judge ’s failure to issue rulings on the appellant ’s motions does not rise to the level of coercive conduct that would have forced him to enter into a settl ement agreement with the agency. This claim does not provide a reason to set asi de the initial decision. Despite the modifications to the initial decision in MSPB D ocket No. PH -315H - 16-C-1, the appellant did not prove that the agency materially breached the settlement agreement . ¶13 The Board retains enforcement authority over settlement agreements that have been entered into its record, independent of any finding of Bo ard jurisdiction over the underlying matter appealed. Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶ 21 (2017). In t his case, the administrative judge entered the agreement into the record on March 7, 2017, vesting the Board with enforcement authority. ID at 2. Accordingly, this petition for enforcement is properly before the Board. ¶14 In the compliance initial decision , the administrative judge determined that the agency was in compliance with the settlement agreement, albeit after missing the deadline. CID at 3 -4. Specifically, the agency expunged the appellant ’s OPF of any mention of the termination action on May 8, 2017, or 17 days after the date 9 contained in the agreement.3 CF, Tab 3 at 5 -6. The administrative judge reasoned that because the agency ’s actions were not in bad faith and the terms of the agreement were fulfilled, there was no showing of noncompliance. CID at 4. ¶15 Because the agency unquestionably did not timely comply with the terms of the agreement, there must be an assessment of whether such a breach was material in nature. Herring v. Department of th e Navy , 90 M.S.P.R. 165 , ¶ 11 (2001). If there is a material breach, the nonbreaching party may elect between rescinding the agre ement , enforcing the agreement, or reinstat ing his appeal. Wonderly v. Department of the Navy , 68 M.S.P.R. 529 , 532 (1995). Whe ther there has been a material breach depends on the extent to which the injured party is deprived of a benefit reasonably expected from the agreement . Leeds v. U.S. Postal Service , 108 M.S.P.R. 113 , ¶ 4 (2008). A breach is material when it relates to a matter of vital importance or goes to the essence of the agreement . Galloway v. Department of Agriculture , 110 M.S.P.R. 311 , ¶ 7 (2008). The agency ’s actions in this instance do not rise to the level of a material breach. ¶16 An integral part of the settlement agreement was for the agency to purge the appellant ’s OPF of documentation related to the termination action so it would not damage his future employment prospects. IAF, Tab 48 at 4-9. Despite the appellant ’s contention on review, there is no evidence of any prospective employer obtaining records of his termination or contacting the agency prior to May 8, 2017. CPFR File, Tab 1 at 5 -6. The agency employee charged with handling the appellant ’s neu tral reference submitted a sworn declara tion affirming to that effect . CF, Tab 3 at 11. Therefore, even considering the agency ’s 17-day untimely expungement of the appellant ’s OPF as a breach, it did not adversely impact his future employment potential , an expected benefit of the agreement. A s such, we find that there was no material breach. See King v. Department of the Navy , 178 F.3d 1313 at *2 -3 (Fed. Cir. 1999) (Table) (finding 3The settlement agreement does not include a provision requiring the agency to issue the appellant a copy of his resignation SF -50. CF, Tab 1 at 7 -12. 10 that a b reach of the agency ’s expungement provision was not material);4 Herring , 90 M.S.P.R. 165, ¶ 15 (finding compliance with th e settlement agreement, as the agency’s failure to timely request an expungement of documents as outlined in the settlement agreement was not a material breach). ¶17 The appellant argues on review that the administrative judge ’s supposed bias for the agency while adjudicatin g the initial appeal led to continued bias in the compliance matter . CPFR File, Tab 1 at 2 -3, Tab 5 at 6, 11-12. The appellant lists supposed ex parte communications between the agency and the administrative judge, the lack of rulings on his motions in the initial appeal , and the administrative judge ’s demeanor on a status call in the initial appeal to support his argument. Id. To show bias, an appellant must make a substantial showing of personal bias to overcome to presumption of honesty and integrity that accompanies administrative adjudicators. Anderson , 51 M.S.P.R. at 696 ; see Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002) (finding that a n administrative judge ’s conduct during the course of a Board proceeding warrants a new adjudication o nly if the administrative judge ’s comments or actions evidence “a deep -seated favoritism or antagonism that would make fair judgment impossible” (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). A review of the record demonstrates no such showing. ¶18 On review, the appellant claims that the agency breached the settlement agreement for partisan political reasons and in retaliation for his reporting sexual harassment. CPFR File, Tab 1 at 3 -4. The appellant also allege s that he was sexually harassed and assaulted and battered by an agency attorney. Id. at 4-5. Yet, because the appellant ’s appeal is a petition for enforcement, the Board may only decide whether the agency has breached the agreement entered into the record and may not decide a claim of discrimination that is alleged to be a basis in 4 The Board may rely on unpublished U.S. Court of Appeals for the Federal Circui t decisions if it finds, as here, the reasoning persuasive. Vores v. Department of the Army , 109 M.S.P.R. 191 , ¶ 21 (2008), aff’d , 324 F. App’x 883 (Fed. Cir. 2009). 11 whole or in part of the agency ’s noncompli ance. See King v. Reid , 59 F.3d 1215 , 1218 -19 (Fed. Cir. 1995). ¶19 In his petition for review, the appellant takes issue with the agency ’s response s to his discovery requests and claims that he was not given enough time to raise such issues prior to the issuance of the initial decision. CPFR File, Tab 1 at 4-5, Tab 5 at 6, 11-12. The administrative judge granted the appellant ’s request for discover y on June 12, 2017, and set July 3, 2017 , as the closure of discovery date. CF, Tab 6 at 1. According to the appellant, he did not receive the agency ’s response to his discovery requests until July 13, 2017. CPFR File, Tab 1 at 4. There is no evidence, however, that he raised the agency ’s purported delay in responding to discovery with the agency representative , as required by the Board ’s regulations, and he did not file a motion to compel with the administrative judge. See 5 C.F.R. § 1201.73 (c), (d)(3). These failures preclude the appellant from raising a discovery dispute on review for the first time . Boston v. Department of the Army , 122 M.S.P.R. 577 , ¶ 12 (2015). Even if the appellant had filed a motion to compel below , he has not shown how the information he sought would have changed the result of his appeal. See Russell v. Equal Employment Opportunity Commission , 110 M.S.P.R. 557 , ¶ 15 (2009). ¶20 Finally, t he appellant ’s additional arguments on review provide no reason to overturn the overall conclusion of the initial decision in MSPB Docket No. PH-315H -16-0458 -C-1, as such arguments relate to the initial decision in MSPB Docket No. PH -315H-16-0458 -I-1. CPFR File, Tab 1 at 21. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final decision in MSPB Docket No. PH-315H -16-0458 -I-1. 5 U.S.C. § 7703 (a)(1) . The initial decision in MSPB 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 a ppropriate in any matter. 12 Docket No. PH -315H -16-0458-C-1, 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 in MSPB Docket No . PH -315H -16-0458 - C-1. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this 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). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 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 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 14 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancem ent Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 15 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent j urisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by t he President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of comp etent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 16 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cou rtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CHOROSZY_ZYGMUNT_PAUL_PH_315H_16_0458_I_1_FINAL_ORDER_1919705.pdf	2022-04-27	null	S	NP
4,439	https://www.mspb.gov/decisions/nonprecedential/BRANSTETTER_BRANDY_DE_315H_16_0125_I_1_REMAND_ORDER_1919747.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BRANDY BRANSTETTER, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER DE-315H -16-0125 -I-1 DATE: April 27, 2022 THIS ORDER IS NONPRECEDENTIAL1 Michael W. Macomber , Esquire, Albany, New York, for the appellant. Gavin M. Frost , Esquire, and Jennifer Koduru , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his probationary termination appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review and REMAND the case to the field office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 On November 19, 2015, the agency separated the appellant from the position of Utility Systems Operator (USO) during his probationary period. Initial Appeal File (IAF), Tab 5 at 23, 48 -49. The appellant’s Federal service preceding his competitive -service appointment as a USO consisted of seven temporary appointments. Id. at 49-50, 65-71. As relevant here, t he last six were alternating appointments to the position of Maintenance Worker , served from spring to fall, and Laborer , served from fall to spring. Id. at 65 -71. The final temporary Laborer appointment was from October 19 to November 29, 2014 . Id. at 49 -50, 63. On November 30, 2014, he was appointed to the pos ition of USO, without a break in service, subject to 1 -year probation . Id. at 49-50. ¶3 The appellant filed a pro se appeal to the Board challenging his separation . IAF, Tab s 1, 9. The administrative judge informed him of his jurisdictional burden and pointed out that he could show he was not a probationer if his Federal service immediately preced ing the USO appointment contained no more than one break in service of 30 days or less, and was performed in the same agency and in the same line of work. IAF, Tab 6 at 2-3. The appellant responded that he satisfied the criteria . IAF, Tab 9. The agency replied by produc ing job descriptions of Maintenance Worker, Laborer , and USO . IAF, Tab 10 at 6 -13, Tab 12 at 8 -27. ¶4 The adminis trative judge found that the appellant’s prior Federal service could not be tacked on to his probationary appointment because the USO and Laborer positions were not in the same line of work . IAF, T ab 16, Initial Decision (ID) at 5-6. She then found that he was a probationer who did not allege that his termination was based on marital status or partisan political reasons, and dismissed his appeal for lack of jurisdiction , without holding his requested hearing . ID at 7-8. ¶5 The appellant has timely petitio ned for review. Petition for Review (PFR) File, Tab 3. He argues that the administrative judge : (1) did not provide him 3 with the guidance sufficient for a pro se litigant ; and (2) failed to view his allegations about the duties he performed during his prior Federal service in the light most favorable to him . Id. at 5. The agency has responded to the petition for review, and the appellant has replied. PFR File, Tab s 6-7. DISCUSSION OF ARGUME NTS ON REVIEW The administrative judge provided the appella nt with guidance sufficient for a pro se litigant to nonfrivolously plead Board jurisdiction . ¶6 An administrative judge is obligated to provide an appellant with explicit information concerning what is required to establish jurisdiction over his appeal , see Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985) , and the Board has demonstrated heightened sensitivity to pro se appellants when administrative judge s have failed to detail jurisdictional burdens , see Mesbah v. Department of Justice , 87 M.S.P.R. 491, ¶ 8 (2001) . Below , the administrative judge informed the appellant of the jurisdictional requirements under 5 C.F.R. § 315.802 (b). IAF, Tab 6 at 2-3. While she did not clarify tha t an employee’s “line of work ” is “ determined by the employee ’s actual duties and responsibilities ,” 5 C.F.R. § 315.802 (b)(2), the appellant’s response to her jurisdictional order indicated his awareness of that principle , IAF, Tab 9. Th us, we find that he was not deprived of the guidance he needed . The administrative judge erred in finding that the appellant failed to nonfrivolous ly allege jurisdiction . ¶7 To appeal an adverse action, such as a removal, an individual appointed to the competitive service generally is required to complete a 1-year probationary period. 5 U.S.C. § 7511 (a)(1)(A) ; see McCormick v. Department of the Air Force , 307 F.3d 1339 , 1341 -43 (Fed. Cir. 2002) (addressing the alternative methods under section 7511(a)(1)(A ) by which an appellant may prove that he is a competitive -service “employee” who may appeal his removal) . However, an appellant who has not served a full year under his appointment can acquire appeal rights by tacking his prior Federal service onto his probationary service , provided 4 that his prior service was completed with no more than one break in service of 30 days or less, and was in the same agency and line of work. See 5 C.F.R. § 315.802 (b). The positions are in the same line of work if they involve related or comparable work that requires the same or similar skills .2 Mathis v. U.S. Postal Service , 865 F.2d 232 , 234 (Fed. Cir. 1988) (interpreting the similar statutory language in 5 U.S.C. 7511 (a)(1)(B) ); Sandoval v. Department of Agriculture , 115 M.S.P.R. 71, ¶ 8, ¶ 11 n.2 , ¶ 14 (2010) (explaining that the interpretation of section 7511(a)(1)(B) in Mathis applies to tack ing under 5 U.S.C. § 7511 (a)(1)(A)). ¶8 Below, the appellant alleged that , during his prior Federal service, his duties were similar to those of a USO , and he kept perform ing these duties regardless o f seasonal changes in his job title , which was altered merely to accommodate the agency’s administrative needs . IAF, Tab 9 ; PFR File, Tab 7 at 6-8. T he administrative judge did not address these allegations and found that the appellant’s prior Federal service was not in the same line of work as his probationary appointment because the USO and Laborer positions had different job descriptions . ID at 5 -6. In doing so, s he erred. See Sosa v. Department of Defense , 102 M.S.P.R. 252 , ¶¶ 11‑13 (2006) (remanding an appeal that an administrative judge dismissed for lack of jurisdiction without holding a hearing in light of the differences in job descriptions , and pointing out that he was required to address the appellant ’s alleg ations about the nature and character of the duties he actually performed ); 5 C.F.R. § 315.802 (b)(2) (indicating that whether positions are in the same line of work is “determined by the employee’s actual duties and responsibilities”) . ¶9 The administrative judge also erred in finding that the appeal could be dismissed for lack of jurisdic tion because the agency met its burden by 2 In determining whether positions are in the same line of work , the Board also may consider whether the positions are in the same competitive level for reduction -in-force purposes. Pagan v. U.S. Po stal Serv ice, 111 M.S.P.R. 212 , ¶ 6 (2009) . 5 preponderant evidence . ID at 6-7. The process of establishing Board jurisdiction generally is a two -step inquiry . See Bledsoe v. Merit Systems Protection Board , 659 F.3d 1097 , 1102 (Fed. Cir. 2011) , modified by regulation on other grounds, as recognized in Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365 , ¶ 10 (2016) . Initially , an appellant is obligated to raise nonfrivolous allegations of fact that, if proven, could establish a prima facie case that the Boa rd has jurisdiction over the matter at issue . See Coleman v. Department of the Army , 106 M.S.P.R. 436 , ¶ 9 (2007); 5 C.F.R. § 1201.4 (s). If he raises nonfrivolous allegations, he is entitled to a hearing at which he must prove jurisdi ction by preponderant evidence . See Bledsoe , 659 F.3d at 1102 ; O’Br ien v. Department of Agriculture , 91 M.S.P.R. 139, ¶ 5 (2002) . Therefore, the preponderant evidence test is inapplicable to the initial stage of the jurisdictional inquiry in general and to an agency ’s submissions in particular. Moreover, an administrative judge may not deem the agency’ s evidence dispositive if it mere ly contradict s the appellant’ s otherwise adequate prima facie showing of jurisdiction . See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994) . Accordingly , a remand is necessary. On remand, the administrative judge should afford the appellant his reques ted jurisdictional hearing and determine whether he meets the defin ition of employee under section 7511(a)(1)(A). 6 ORDER ¶10 For the reasons discussed above, we remand this case to the field office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BRANSTETTER_BRANDY_DE_315H_16_0125_I_1_REMAND_ORDER_1919747.pdf	2022-04-27	null	DE-315H	NP
4,440	https://www.mspb.gov/decisions/nonprecedential/THATCHER_SCOTT_CH_844E_16_0608_I_1_FINAL_ORDER_1919789.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SCOTT THATCHER, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-844E -16-0608 -I-1 DATE: April 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert R. McGill , Esquire, Walkersville, Maryland, for the appellant. Linnette Scott , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management that denied his application for disability retirement under the Federal Employees ’ Retirement System (FERS). Generally, we grant petitions such as this one only in 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 circumstan ces: 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 ruli ngs 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 ). Af ter fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board ’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On petition for review, the appellant makes the following arguments: the administrative judge improperly relied on her own characterization of the appellant ’s job duties and a selective reading of the position description instead of relying on his provided testimony ; the administrative judge failed to credit the appellant ’s testimony concerning his medical issues ; and the adm inistrative judge failed to properly credit the provided medical evidence and testimony and substituted her own “medical opinion ” as to the appellant ’s capabilities with that of the appellant ’s treating physician, contrary to decisions of the U.S. Court of Appeals for the Federal Circuit in Vanieken -Ryals v. Office of Personnel Management , 508 F.3d 1034 (Fed. Cir. 2007) and Bruner v. Office of Per sonnel Management , 996 F.2d 290 (Fed. Cir. 1993), and the Board ’s decision in Henderson v. Office of Personnel Management , 117 M.S.P.R. 313 (2012) . Petition for Review File, Tab 1. ¶3 After considering the appellant ’s arguments on review and reviewing the record, we dis cern no reason to disturb the initial decision. In particular, we agree with the administrative judge ’s finding that the appellant has failed to show 3 that his medical conditions caused a deficiency in his performance, attendance, or conduct, or that they were incompatible with useful and efficient service or retention in his position. Initial Appeal File, Tab 16, Initial Decision2 at 11-14; see Henderson , 117 M.S.P.R. 313, ¶ 16; see also Jackson v. Office of Personnel Management , 118 M.S.P.R. 6 , ¶ 7 (2012). We also conclude that the administrative judge properly considered the appellant ’s subjective evidence concerning his medical conditions, as well as th e medical record evidence and treating physician testimony. See Henderson , 117 M.S.P.R. 313 , ¶ 19 . ¶4 Accordingly, we affir m the administrative judge ’s conclusion that the appellant has failed to meet his burden of proving his entitlement to disa bility retirement under FERS. Initial Decision at 14. 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 2 During the adjudication of the appellant ’s petition for review, it was discovered that the Hearing Compact Discs (HCD) in the paper file did not match the recordi ngs uploaded to the electronic file. Initial Appeal File , Tabs 14 -15; HCD s 1-2. The correct and complete recording s were replaced in the paper and electronic files, but a s a consequence, the citations to the HCDs in the initial decision are now incorrect . In the revised paper and electronic files, the testimony of the appellant ’s physician is contained in Tab 14 and the testimony of the appellant ’s friend and the appellant are located in Tab 15. 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 lat er than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be 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 “raise s no challenge to the Board’s disposition of allegations of a prohibited personne l practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 revi ew of MSPB decisions in certain whistleblower 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. N o. 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	THATCHER_SCOTT_CH_844E_16_0608_I_1_FINAL_ORDER_1919789.pdf	2022-04-27	null	CH-844E	NP
4,441	https://www.mspb.gov/decisions/nonprecedential/LIMBRICK_LAURA_A_DA_0752_21_0293_I_1_FINAL_ORDER_1919865.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD LAURA A. LIMBRICK, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER DA-0752 -21-0293 -I-1 DATE: April 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kristopher K. Ahn , Esquire, Houston, Texas, for the appellant. Bridgette Gibson , Esquire , and Shelley Poe , Esquire, Dallas, Texas, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her removal appeal . 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision we re not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not avail able when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On petition for review, the appellant does not challenge the administrative judge’s finding that her appeal was untime ly filed. Petiti on for Review (PFR) File, Tab 9 at 5 -16. Rather, she challenges the merits of her underlying removal and raises several arguments regarding good cause for her filing delay . Id. at 5-16, 47. The appellant repeats her argument about being displaced from her home and dealing with her child’s hospitalization. Id. at 14, 20-23; Initial Appeal File (IAF), Tab 7 at 1, 4, Tab 11 at 4 -7. She also raises new timeliness arguments. The appellant maintains that her receipt of the decision letter w as not sufficient notice of her Board appeal rights due to her medical condition affecting her vision in one eye, and that her “partial blindness” affected her ability to file an appeal. PFR File, Tab 1 at 14, 19, 23. She argues that the filing deadline is not jurisdictional and that the agency would not be prejudiced if the Board waived the deadline. Id. at 15. Finally, she asserts that she acted “promptly and without delay” in filing her appeal once she found her letter. Id. at 16. ¶3 The appellant also submits new evidence in support of her timeliness argument, namely documents concerning the presidential declaration of a national emergency concerning Covid -19 and notices of the relaxing of certain administrati ve procedures by the Texas Supreme Court and the U.S. Department 3 of Labor due to the pandemic. PFR File, Tab 9 at 25 -36. Although the appellant referred generally to “Stay at Home orders” during the Covid -19 pandemic in her timeliness response, IAF, Tab 11 at 6, her representative argues on review that her filing deadline should have been stayed as of March 1, 2020, when the national emergency was declared, PFR File, Tab 9 at 15 -16. ¶4 Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the close of the record below despite the party’s due diligence. See Avansino v . U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980); see also Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board generally will not consider a new argument raised for the first time on review absent a showing that it is based on new and m aterial evidence). The appellant offers no explanation why she did not submit this evidence or raise these new arguments in her timeliness response. PFR File, Tab 9 at 14 -16; IAF, Tab 11. The fact that the appellant has a new representative on review is not grounds to consider argument and evidence that was not raised during t he pendency of the appeal. PFR File, Tab 9 at 47. In any event, none of these arguments support a finding of good cause for the filing delay. ¶5 The appellant has provided no basis f or disturbing the initial decision . The administrative judge considered the relevant factors and made reasoned findings that the appellant failed to establish good cause to waive the filing deadline. IAF, Tab 19, Initial Decision ( ID) at 3-9; see Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62 -63 (1995), aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table). Although the appellant was pro se during the pendency of her appeal, a 15 -month2 2 The administrative judge correctly found that the deadline to file an initial appeal was March 2, 2020. ID at 3. However, he incorrectly calculated the length of the filing delay as 464 days. Id. The appellant’s June 7, 2021 initial appeal was filed 462 da ys after the filing deadline. However, this discrepancy is immaterial. The appellant has failed to show that her appeal was timely or that good cause existed for the significant delay of over 15 months. 4 delay is lengthy. See Smith v. Department of the Army , 110 M.S.P.R. 50 , ¶ 10 (2008) (stating that a filing delay of 15 months is significant). As noted by the administrative judge, the appellant offered no explanation why, if she moved back to her home in January 2021, she did not file her appeal until June 2021. ID at 4. The appellant’s statement on review that she “ finally unloaded her suitcases that she was living out of for the past two years and found the January 29, 2020 termination letter” does not demonstrate due diligence in challenging her removal. PFR File, Tab 9 a t 14; see Moorman , 68 M.S.P.R. at 63. Similarly, the appellant’s conclusory argument about the Covid -19 pandemic provides no explanation why she was unable to file an appeal until June 2021, but able to do so at that time while the pandemic was ongoing. PFR File, Tab 9 at 15 -16. ¶6 The administrat ive judge correctly noted that the appellant first claimed that the agency had not provided her with the removal decision letter , but later submitted a copy of it into the record and acknowledged receiving the lette r during a meeting with management. ID at 5; IAF, Tab 1 at 16, Tab 7 at 6 -10, Tab 11 at 5. On review, she maintains that she was given “no instructions for appeal,” but instead was “only given [the decision letter] and escorted out of the building .” PFR File, Tab 1 at 21. However, the decision letter explicitly provides detailed information regarding Board appeal rights. IAF, Tab 7 at 8 -9. Despite her representative’s argument that her partial blindness in one eye affected her ability to read the deci sion letter and the Board appeal rights, the appellant does not raise this issue in her signed statement, instead maintaining that she did not understand that the letter was a removal decision. Id. at 14, 19, 21-22. The appellant has set forth no facts t hat could support a finding of good cause due to illness or incapacity. See Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1 998) (setting forth the factors a party must establish to demonstrate that an untimely filing was the result of illness or incapacity). Finally, regarding the appellant’s argument that the Board should waive her untimely filing because the issue of timeli ness is not jurisdictional , her citation to 5 a U.S. Supreme Court case concerning the adjudication of veterans’ benefit claims before the Department of Veterans Affairs is not relevant to the Board’s regulations concerning timeliness and waiver for good cau se shown . PFR File, Tab 9 at 15 (citing Henderson v. Shinseki , 562 U.S. 428 (2011) ); 5 C.F.R. § 1201.22 (b)-(c). 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 appro priate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of App eals for the Federal Circuit, which must be received by the court 3 Since the issuance of the initial decision in th is matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Fo rms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases i nvolving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may ob tain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 7 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of 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 issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D. C. 20507 8 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’ s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 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. 4 The original statutory provision that provided for judicia l review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judi cial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our 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	LIMBRICK_LAURA_A_DA_0752_21_0293_I_1_FINAL_ORDER_1919865.pdf	2022-04-27	null	DA-0752	NP
4,442	https://www.mspb.gov/decisions/nonprecedential/WELLINGTON_DONNA_AT_0714_19_0109_X_1_FINAL_ORDER_1919868.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DONNA WELLINGTON, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0714 -19-0109 -X-1 DATE: April 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lateefah S. Williams , Esquire, Alexandria, Virginia, for the appellant. Lucille P. Smith , Esquire, Columbia, South Carolina, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 In an April 30, 2020 compliance initial decision, the administrative judge found the agency in partial noncompliance with the Board’s May 13, 2019 final decision reversing the appellant’s removal and ordering the agency to retroactively restore her with back pay and benefits. Wellington v. Department 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 Veterans Affairs , MSPB Docket No. AT -0714 -19-0109 -I-1, Initial Appeal File, Tab 54, Initial Decision; Wellington v. Dep artment of Veterans Affairs , MSPB Docket No. AT -0714 -19-0109 -C-1, Compliance File, Tab 6, Compliance Initial Decision (CID) . For the reasons discussed below, we find the agency in compliance and DISMISS the appellant’s petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 In t he compliance initial decision, the admini strative judge found the agency in partial noncompliance with the Board’s final order to the extent it had failed to pay the appellant back pay with interest , restore her leave, and refund to her health insurance premiums and debt collection payments that had been improperly withheld from her paycheck . CID at 2 -3. Accordingly, the administrative judge granted the appellant’s petition for enforcement and ordered the agency to : (1) pay the appellant her back pay, with interest; (2) restore the appella nt’s leave ; (3) cease the debt collection from the appellant’s pay based upon the agency’s erroneous determination that the appellant was absent without leave ( AWOL ); (4) refund to the appellant all money withheld from her paycheck based upon the erroneous AWOL/debt determination; and (5) withhold health insurance premiums during the back pay period in accordance with Office of Personnel Management (OPM) regulations. CID at 3-4. ¶3 In the compliance initial decision, 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. The compliance initial decision also informed the parties that they could file a petition for review if they disagreed with the compliance initial decision. CID at 5-6; see 5 C.F.R. §§ 1201.114 (e), 1201.183(a)(6)(ii). Neither party filed a petition for review and, on June 5, 2020, the agency submitted a statement to the Board regarding its efforts to comply with the actions identified in the compliance initial decision. Wellington v. Department of Veterans Affairs , MSPB 3 Docket No. AT -0714 -19-0109 -X-1, Compliance Referral File (CRF), Tab 1. Accordingly, pursuant to 5 C.F.R. § 1201.183 (c), the appellant’s petition for enforcement has been referred to the Board for a final decision on issues of compliance. ¶4 In its June 5, 2020 compliance submission, the agency stated that it had submitted to the Defense Finance and Accounting Service (DFAS) all of the required documentation that DFAS needed in order to tak e the actions identified in the compliance initial decision . CRF, Tab 1. However, according to the agency , DFAS had not yet taken these actions due to a backlog. Id. ¶5 In a supplemental submission filed on September 28, 2021, the agency informed the Bo ard that it had complied with the Board’s final order by paying the appellant her backpay with interest; restoring her leave; cancelling all erroneous debt s assessed to her; and ensuring that her health insurance premiums were withheld in accordance with O PM’s regulations. CRF, Tab 3. As evidence of its compliance, the agency provided a declaration from the Civilian Payroll and Agency Cashier Supervisor who performed a review of the Earning and Leave Statement data and Audit documentation prepared by DFAS that pertained to appellant’s Master Civilian Payroll account. Id. at 9 -12. Attached to this declaration were copies of two of the appellant’s pay statements for pay periods ending June 20, 2020 , and July 4, 2020 , showing the restoration of 64 hours of annual leave and 55 hours of sick leave ; payment of back pay for 480 hours ($14,713.16 ) plus interest ($971.82 ); and a refund of $1,121.46 for the health insurance premiums that had been improperly deducted from her paycheck s. Id. at 13 -16. Also attached to this declaration were several “Debt Case” screen shots showing that each of the three erroneous debt collections assessed to appellant had been reduce d to a zero balance. Id. at 17-25. ANALYSIS ¶6 When the Board finds a personnel action u nwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation he would 4 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 o f its compliance actions supported by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010). ¶7 Here , the agency has demonstrated that it has paid the appellant back pay for 480 hours plus interest , restore d to her 64 hours of annual leave and 55 hours of sick leave , issued her a refund of $1,121.46 for improper withholdings of health insurance premiums , and has cease d the improper debt collection from appellant’s pay. The appellant has not responded to either of the agency’s compliance submissions, despite bei ng notified of her opportunity to do so , including having been cautioned that the Board may assume she is satisfied and dismiss her petition for enforcement if she did not respond. CRF, Tab 2. Accordingly, we assume that the appellant is satisfied with t he agency’s compliance . See Baumgartner v. Department of Housing & Urban Development , 111 M.S.P.R. 86 , ¶ 9 (2009). ¶8 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)). 5 NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one 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: 2 Since the issuance of the initial decision in this matter, the Board may have updated the not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 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 Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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 7 to waiver of any requirement of prepayme nt of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review t o the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursua nt to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 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 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 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/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 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	WELLINGTON_DONNA_AT_0714_19_0109_X_1_FINAL_ORDER_1919868.pdf	2022-04-27	null	AT-0714	NP
4,443	https://www.mspb.gov/decisions/nonprecedential/CAESAR_CAMILLE_M_DC_844E_17_0486_I_1_FINAL_ORDER_1919890.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CAMILLE M. CAESAR, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC-844E -17-0486 -I-1 DATE: April 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Camille M. Caesar , Washington, D.C., pro se. Shawna Hopkins , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) dismissing her application for disability retirement as untimely filed. Generally, we grant petitions such as this one only in the following circumstances: the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 initial decision cont ains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the pet itioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filin gs in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decisi on. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 Effective March 17, 2010, the appellant was removed from Federal service based on misconduct .2 Initial Appeal File (IAF), Tab 6 at 50 . On January 14, 2015, the appellant ap plied for disability retirement benefits under the Federal Employees’ Retirement System (FERS ). Id. at 14. By initial decision dated March 14, 2016, OPM dismissed the appellant’s disability retirement a pplication as unti mely filed. Id. at 14-15. The appellant requested reconsideration of OPM’s decision, and on April 3, 2017, OPM issued a reconsideration decision affirming its initial decision on the grounds that the appellant did not timely file her application and did not show a basis on which to waive the filing deadline. Id. at 4-5. 2 Specifically, the Department of Commerce removed her from her position as a GS -15 Attorney Advisor based on the following charges: (1) Causing the Alteration of an Official Document; (2) Lack of Candor; (3) Failure to Follow a Direct Order; and (4) Conduct Unbecoming a GS -15 Attorney Advisor. IAF, Tab 6 at 50. 3 ¶3 The appellant timely appealed OPM’s reconsideration decision to the Board. IAF, Tab 1. Following a hearing, the administrative judge affirmed OPM’s reconsideration decision. IAF, Tab 2 3, Initial Decision (ID). The administrative judge considered the appellant’s argument that, because of her medical condition, the agency should have provided her notice of the possibility of applying for disability retirement. ID at 5 -6. He found , howe ver, that the appellant’s medical condition did not cause the misconduct that formed the basis of her removal and thus the agency was under no regulatory or statutory obligation to provide her with such notice . ID at 7. As such, he found that the appellant filed her application almost 5 years after the statutory time limit expired . Id. ¶4 The appellant timely filed a petition for review in which she reasserts her argument that she was entitled to notice from her employing agency o f her eligibi lity for disability retirement and that the agency’s failure to provide her with such notice entitles her to equitable tolling of the time limit to file her application . Petition for Review ( PFR ) File, Tab 1 at 16-17. OPM has filed a respons e. PFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 An application for disability retirement under FERS must be filed with an employee’s employing agency before the employee separates from service or with the former employing agency or OPM within 1 yea r af ter the employee’s separation . 5 U.S.C. § 8453 ; King v. Office of Personnel Management , 112 M.S.P.R. 522 , ¶ 7 (2009); 5 C.F.R. § 844.201 (a)(1). This 1 -year time limit for filing a disability retirement application following an employee’s separation from s ervice may be waived if the employee is mentally incompetent at the date of separation or within 1 year thereafter and if the application is filed with OPM within 1 year from the date the emplo yee is restored to competency or is appointed a fiduciary, whic hever is earlier. King , 112 M.S.P.R. 522 , ¶ 7; 5 C.F.R. § 844.201 (a)(4 ). Pursuant to 5 C.F.R. § 844.202 (b)(1), when an agency 4 removes an employee covered by FERS and “the removal is based on reasons apparently caused by a medical condition, th e agency must advise the employee in writing of his or her possible eligibility for disability retirement and of the time limit for filing an application.” The Board has held that the regulation requires the agency to act when it appears that the basis fo r the removal was caused by a medical condition, regardless of whether the removal was for disciplinary or other reasons. King , 112 M.S.P.R. 522 , ¶ 13 . ¶6 The appellant contends on review that she was entitled to notice of her possible eligibility for disability retirement, that her employing agency failed to give such notice, and that she is thus entitled to equitable tolling of the 1 -year time limit for filing an application for disability retirement. PFR File, Tab 1 at 16-17. The appellant cites to Winchester , a nonprecedential U.S. Court of Appeals for the Federal Circuit decision, and Johnson , a nonprecedential Board decision , for the proposition that she is entitled to equitable tolling . Id. at 21 -23; see Winchester v. Office of Personnel Management , 449 F. App’x 936, 938 (Fed. Cir. 2011 )3; Johnson v. Office of Personnel Management , MSPB Docket No. CH-844E -14-0449 -M-1, Remand Order (Sept. 2, 2016) . ¶7 However, the administrative judge considered these two cases below and determined that they do not provide a basis for equitable tolling in the instant case. ID at 5. We agree. First, t he administrative judge correctly noted that neither case constitutes binding precedent on the Board. See Hamilton v. Brown , 39 F. 3d 1574 , 1581 (Fed. Cir. 1994) (reminding counsel and lowe r courts that “nonprecedential opinions and orders . . . do not represent the considered view of the Federal Circuit regarding aspects of a particular case beyond the decision itself, and they are not intended to convey this court’s view of law applicable in 3 While the appellant in Winchester applied for disability retirement under the Civil Service Retirement System (CSRS ), there is no subs tantive difference between the CSRS and FERS statutes or regulations as applicable to this appeal. Compare 5 U.S.C. § 8337 (b), with 5 U.S .C. § 8453 ; compare 5 C.F.R. § 831.1205 (b)(1), with 5 C.F.R. § 844.202 (b)(1). 5 other cases”); 5 C.F.R. § 1201.117 (c)(2) ( explaining that nonprecedential orders are not binding and have no precedential authority); ID at 5. Second , the administrative judge factua lly distinguished both cases from the instant appeal . ID at 5. In those cases, the employing agency removed the appellants for reasons connected to their respective medical conditions. ID at 5; see Winchester , 449 F. App’x at 937 (noting that the appellant was removed for reasons connected to his medical condition as extensively described in his removal notice ); Johnson v. Office of Personnel Management , MSPB Docket No. CH-844E -14- 0449 -B-1, Initial Decision at 6 (Dec. 8, 2016) (finding that the age ncy had been provided information from the appellant’s medical providers that the absences that caused the agency to charge the appellant with, and propose his removal for, absence without leave were due to a medical condition ). ¶8 Here, in contrast , the administrative judge found that there was not a connection between the appellant’s medical condition and the miscondu ct for which she was removed . ID at 5. The appellant alleges that the administrative judge erred in not referencing the medical evidence in the initial decision that she submitted below. PFR File, Tab 1 at 4, 18. However, the administrative judge acknowledged that the appellant provided a “great deal of documentary evidence regarding her medical condition.” ID at 5. Moreover, an administr ative judge’s failure to mention all of the evidence of record does not mean that he did not consider it in reaching his decision. Marques v. Department of Health & Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d , 776 F.2d 1062 (Fed. Cir. 1985) (Table). Accordingly, t he appellant has provid ed no reason for disturbing the administrative judge’s well -reasoned f inding that there was not a connection between the appellant’s medical condition and her removal . ID at 5. ¶9 The appellant also alleges that the administrative judge incorrectly found that, under 5 C.F.R. § 844.202 (b)(1), she must show that she has a medical condition that served as a successful defense to her misconduct in an administrative hearing to be entitled to notice of eligibility for disability 6 retirement. PFR File, Tab 1 at 4. The administrative judge di d not make any such finding. Rather, the admini strative judge referenced the appellant’s prior removal appeal to note that nothing in that appeal indicated that her medical condition caused the misconduct and that, while she had a disability discriminatio n claim, she did not argue that her condition cau sed the misconduct. ID at 5 -6. Thus, contrary to the appellant’s assertions, he did not find that section 844.202(b)(1) requires a successful disability discrimination defense to a misconduct charge. PFR File, Tab 1 at 22; ID at 5 -6. ¶10 The administrative judge correctly noted that, because the appellant’s removal was not based on reasons apparently caused by a medical condition, the employing agency was not required to provide her with notice of her potentia l eligibility for disability retirement and equitable principles need not be invoked to determine whether waiver of the statutory time limit is appropriate . ID at 6-7. Thus, OPM properly dismissed the appellant’s application for disability retirement as untimely filed. Accordingly, we affirm the administrative judge’s initial decision. 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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. 8 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action 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: 9 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial 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 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 5 The original sta tutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently al lows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CAESAR_CAMILLE_M_DC_844E_17_0486_I_1_FINAL_ORDER_1919890.pdf	2022-04-27	null	DC-844E	NP
4,444	https://www.mspb.gov/decisions/nonprecedential/BENOIT_JEFFERY_B_DC_3443_21_0386_I_1_FINAL_ORDER_1919901.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JEFFERY B. BENOIT, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-3443 -21-0386 -I-1 DATE: April 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeffery B. Benoit , Providence Forge, Virginia, pro se. Megan Garry , Esquire, Fort Lee, Virginia, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Levitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial d ecision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 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 this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to vacate the administrative judge’s factual findi ngs and clarify that the appellant has not made a nonfrivolous allegat ion that he was subjected to an appealable adverse action , we AFFIRM the initial decision. BACKGROUND ¶2 The appellant was briefly employed as a program analyst at a U.S. Army installat ion at Fort Lee, Virginia. Initial Appeal File (IAF), Tab 1 at 1, 7-8. The appellant’s characterization of his employment differs from his Standard Form 50 (SF -50) and the evid ence put forward by the agency. The SF -50 that he submitted into the record reflects that, effective February 16, 2021 , the appellant received a provisional appointment , not to exceed (NTE) April 17, 2021. Id. at 7 -8. However, in filing the present appeal, the appellant argued that he had been , “[T]erminated from [P]ermanent [P]o sition” on April 17, 2021 . Id. at 3. In his initial appeal form, the appellant checked the boxes indicating that he was a permanent Federal employee in the competitive service, and that he was not “serving a probationary, trial, or initial service period at the time of the action” he was appealing. Id. at 1. He identified the length of his government service as 2 months. Id. ¶3 The appellant maintained he was “hired by name based on qualifications” with veterans’ preference and that the job posting for the program analyst 3 position stated that it was a permanent position. Id. at 5 , 10. He submi tted copies of a tentative off er letter dated January 19, 2021 , and official offer letter dated January 26, 2021 , both of which stated that th e position was permanent. Id. at 11-14. The appellant stated that, during a meeting on April 8, 2021, his supervisor told him that it was his la st day of work and that he would be paid until April 17, 2021. Id. at 5. He stated that, after he realized that the supervisor had not given him anything in writing regarding th e termination, he contacted his supervisor asking for a termination letter. Id. The supervisor purported ly stated that he had contacted Human Resources (HR) about drafting a termination letter. Id. The appellant maintained that it was his “belief that this is when [his SF-50] was altered to reflect Provisional Status and dates. ” Id. He submitted an undated termination letter into the record that stated, “Your provision appointment was set to expire on 17 April. Management has elected to not convert this appointment to permanent.” Id. at 15. ¶4 In its narrative response, the agency argued that the Board lacked jurisdiction over the appeal. IAF, Tab 6 at 4 -7. It assert ed that the appellant had received a “by -name (noncompetitive) provisional (temporary) appointment” pursuant to an appointment authority permitting temporary ap pointments of qualified veterans, and that the appointment had expired April 17, 20 21. Id. at 4-5. It argued that the termination of the appellant’s appointment on the expiration date was not an appealable adverse action. Id. at 5 , 22. The agency argue d that the appellant’s assertion that it altered his SF -50 was conclusory and contradicted by the evidence . Id. at 7. In a sworn declaration, an HR specialist set forth the circumstances of the agency’s offer of a provisional appointment to the appellant , after he informed her that he had le ft his previous position in Kuwait in order to accompany his spouse to Fort Lee and provided documents demonstrating that he qualified for the hiring authority. Id. at 17. The agency also submitted a sworn decl aratio n from an HR specialist who stated that she had made an error in the appellant’s offer letter by omitting the information that it 4 was a temporary appointment with a not -to-exceed d ate but also attested that she had verbally informed the appellant about the nature of his provisional appointment . Id. at 20 . Finally, the agency submitted an SF -50 from the appellant’s prior position at a U.S. Army installation in Kuwait, reflecting a provisional appointment with a not -to-exceed date and argued that this prior employment demonstrated that the appella nt was aware of the nature of a temporary appointment. Id. at 40 . ¶5 Subsequently, the administrative judge issued an order to show cause, noting that the agency had submitted evidence into the record indicating that the appellant held a provisional or temporary appointment that lapsed according to its expiration date, and therefore the Board lacked juris diction. IAF, Tab 7 at 3. She ordered the appellant to submit evidence and argument demonstrating that the appeal should not be dismissed for lack of jurisdiction. Id. at 3 -4. ¶6 In response, the appellant argued that none of the documents he had received pertaining to the program analyst position, including the offer letters, stated that the position was a provisiona l appointment with a not -to-exceed date. IAF, Tab 8 at 4 -5. He stated further that he had identified himself as a permanent employee at a new employee orientation and no one corrected him. Id. at 6. The appellant maintained that he was unable to access his SF -50 and had contacted an HR professional about this issue. Id. at 6 -7. He asserted that, “[f]rom the date [he] was hir ed on February 16, 2021, through the date that [he] was fired April 8, 2021, there was never any mention that [he] was a provisio nal employee ” by his supervisor or any HR professional. Id. at 7. The appellant stated that his previous position at a U.S. Army installation in Kuwait was a “permanent position with a one -year duration [sic] .” Id. at 7. Finally, the appellant argued that because the job posting and offer letters did not explain that the appointment was provisional, the agency “must accept responsibility for their actions ,” and he opined that the agency had engaged in a “fabrication of t he facts to shield the agency from an action.” Id. at 8. 5 ¶7 Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 9, Initial Decision (ID) at 1, 7. The administra tive judge found that the appellant had received a temporary appointment that had expired on its not -to-exceed date and that the expiration of a temporary appointment is not an action appealable to the Board. ID at 4 -5. She also found that, even if the a ppellant’s appointment was not provisional, the record showed that he would not meet the definition of an employee with chapter 75 appeal rights. ID at 6 . ¶8 The appellant has filed a petition for review, arguing that he was “denied [his] procedural due process rights.” Petition for Review (PFR) File, Tab 1 at 18. He repeats his arguments that he held a permanent position because none of the documents related to his hiring identified a provisional appointment and the agency altered his SF -50. Id. at 18 -21. The appellant submits evidence concerning the jurisdictional issue, some of which was already in the record. Id. at 4-15. The agency has not filed a response. DISCUSSION OF ARGUME NTS ON REVIEW ¶9 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The existence of Board jurisdiction is a threshold issue in adjudicating an appeal, and the appellant bears the burden of establishing jurisdiction by preponderant evidence. Scott v. Department of the Air Force , 113 M.S.P.R. 434 , ¶ 5 (2010); 5 C.F.R. § 1201.56 (b)(2)(i)(A). An appellant is entitled to a jurisdictional hearing if he presents nonfrivolous allegations of Board jurisdiction. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994). In determining whether the appellant has made a nonfrivolous allegation of jurisdiction entitling him to a hearing, the administrative judge may consider the agency’s documentary submissions; however, to the extent that the agency’s evidence constitutes mere factual 6 contradiction of the appellant’s otherwise adequate prima facie showing of jurisdiction, the administrative judge may not weigh evidence and resolve conflicting assertions of the parties , and the agency’s evidence may not be dispositive . Id. ¶10 Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the close of the record below despite the party’s due diligence. Pirkkala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 5 (2016); see Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board generally will not consider a new argument raised for the first time on review absent a showing that it is based on new and m aterial evidence). However, we have considered the appellant’s new evidence and argument to the extent it concerns the issue of t he Board’s jurisdiction because the Board’s jurisdiction can be raised at any time including on review. See Pirkkala , 123 M.S.P .R. 288 , ¶ 5 (considering evidence submitted for the first time on review because it was relevant to the Board’s jurisdiction). ¶11 Here, the administrative judge arguably improperly weighed the evidence i n finding that the appellant held a temporary appointm ent and did not meet the definition of an employee for the purposes of chapter 75 appeal rights, and we vacate those findings. ID at 5 -7; see Ferdon , 60 M.S.P.R. at 329. Rather the administrative judge should have assessed whether the appellant had made nonfrivolous allegations that he suffered an appealable adverse action . ¶12 It is well established that the expiration of a temporary appointment is not an adverse action appealable to the Board. See Scott , 113 M.S.P.R. 434 , ¶ 9; Endermuhle v. Department of the Treasury , 89 M.S.P.R. 495 , ¶ 9 (2001); 5 C.F.R. § 752.401 (b)(11) (exc luding the termination of an appointment on the expiration date specified as a basic condition of employment at the time the appointment was made from the adverse actions covered under chapter 75). The Board looks to the totality of the circumstances to d etermine the nature of an employee’s 7 appointment; an employee’s SF -50, although the customary document used to memorialize a personnel action, is not controlling. Scott , 113 M.S.P.R. 434 , ¶ 8. Here, the appointment SF -50, authorized on February 3, 2021 , with an effective date of February 16, 2021, stated that the appellant received a provisional appoint ment with a not -to-exceed date of April 17, 2021. IAF, Tab 1 at 16. The SF-50 states that the appointment was made pursuant to 5 C.F.R. § 316.402 (b)(4) , which authorizes temporary noncompetitive appointment s of veter ans with a service‑connected disability of 30 percent or more, for which the appellant qualified as indicated by his veterans ’ preference code. Id. Finally, the SF -50 explicitly states that the appointment is on a provisional basis. Id. As noted by the administrative judge, the agency has admitted that the initial and final offer letters it sent to the appellant incorrectly stated that it was a permanent position. ID at 5; IAF, Tab 1 at 11 -14, Tab 6 at 20. ¶13 The essence of the appellant’ s arguments on appeal and on review is that he detrimentally relied on documents from the agency, notably the offer letters and vacancy announcement, and therefore , he sh ould be treated as if he was an employee in a permane nt competitive -service position for purposes of Board appeal rights . IAF, Tab 1 at 5, Tab 8 at 6 -8; PFR File, Tab 1 at 18-26. He states that the agency’s HR errors created a “legally binding contract” and that the provisional nature of the position was not part of the contract because i t was “not presented in the job announcement .” PFR File, Tab 1 at 18. The appellant challenges the accuracy of the sworn declaration s from the agency HR professionals attesting that they had informed him of the nature of his provisional appointment and repeats his bare assertion that the agency added the provisional appointment with a not -to-exceed date to his SF -50 only after he demanded a termination letter from his supervisor. Id. at 19 -20; IAF, Tab 6 at 17, 20 . He submits for the first time on revie w April 2021 email correspondence, in which a union representative requests information regarding the nature of the appellant’s employment and relays the appellant’s understanding that he was 8 a permanent employee due to the language in his job offer and th e vacancy announcement . PFR File, Tab 1 at 4 -5. He also submits a document defining various blocks and codes in SF -50 records and a copy of the appointment and termination SF-50s that the agency had previously submitted into the record. Id. at 8-15. ¶14 Reviewing the totality of the circumstances regarding the allegations set forth by the appellant and the documents he submits into the record, we find that he has not raised a nonfrivolous allegation that the provisional appointment set forth in his SF -50 was incorrect and that he was subjected to an appealable adverse action. See Scott , 113 M.S.P.R. 434 , ¶ 8. The appellant’s bare, conclusory statement that the agency altered his SF -50 to add a provisional appointment o nly after he was terminated by his s upervisor does not constitute a nonfrivolous allegation that he had received a permanent competitive -service appointment. IAF, Tab 1 at 5; PFR, Tab 1 at 19 ; see 5 C.F.R. § 1201.4 (s). He offers no support for this allegation and notably does not allege the existence of a previous SF -50 or other appointment documentati on that the HR professionals were alleged to have altered. Although the appellant focuses on the vacancy announcement that identified the position as permanent, by his own acknowledgement, he did not apply for the vacancy announcement but instead received a by -name direct offer from an agency HR professional afte r he explained his prior position at another U.S. Army installation and presented his qualifications. PFR File, Tab 1 at 19; IAF, Tab 1 at 5, 10, Tab 8 at 5-6. ¶15 None of the equitable considerations raised by the appellant relieve him of his burden of proof regarding jurisdiction. The appellant’s argument that the agency’s errors created a binding legal contract granting him a permanent position and entitling him to due process rights is not a basis for finding Board jurisdiction. PFR File, Tab 1 at 18-19. The Board has held in other circumstances that an agency’s error cannot confer jurisdiction on the Board to hear the merits of an appeal. See, e.g., LaBoube v. Department of the Treasury , 9 105 M.S.P.R. 337 , ¶8 (2007) (finding that the agency’s failure to provide accurate information at the time of appointment about the require ment to serve a trial period is no basis for waiving the requirement); Phillips v. Department of Housing and Urban Development , 44 M.S. P.R. 48 , 52 (1990) (f inding that an agency’s failure to inform an employee that she was required to serve a probationary period until 11 months after she was appointed did not alter the requirements that she complete a one -year probationary period that beg an on the effective date of her appointment). ¶16 The appellant also repeats his argument on review that the agency failed to comply with 5 C.F.R. § 316.403 (a)(3) because the offer letters did not identify the provisional appointment. PFR File, Tab 1 at 20; IAF, Tab 8 at 26. Under 5 C.F.R. § 316.403 (a)(3), an agency designating an appointment as provisional must state its intention to convert an appointment to a nontemporary appointment under appropriate authority before the expiration of the temporary appointment, must state this intention in any written offer of employment , and document this intention as part of the permanent record of the initial appointment. Here, although the agency included the provisional nature of the appointment in the SF-50, the record supports the appellant’s allegation that it did not include the necessary information in the offer letters. IAF, Tab 1 at 8 -14, 16 -17. However, as noted by the administrative judge, the agency’s errors cannot confer Board jurisdiction and do not demonstrate that the personnel action at issue was not the expiration of a temporary appointm ent outside the scope of the Board’s jurisdiction. ID at 5. The Board’s jurisdiction is established by statute or regulation and cannot be waived by the Board for equitable considerations. See Toomey v. U.S. Postal Service , 71 M.S.P.R. 10 , 13-14 (1996). ¶17 Because the appellant has not raised nonfrivolous allegations that he was subjected to a removal instead of the expiration of a temp orary appointment, it is irrelevant whether he met the statutory definition of an employee under chapter 75. Scott , 113 M.S.P.R. 43 4, ¶ 9; Endermuhle , 89 M.S.P.R. 495 , ¶ 9. Therefore, 10 he is not entitled to a jurisdictional hearing , and the administrative j udge properly dismissed the appeal for lack of jurisdiction. See Ferdon , 60 M.S.P.R. at 329. 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 cla ims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Mer it Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If y ou wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of yo ur case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your c ase, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circui t, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 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. 11 If you submit a petition for review to the U.S. Court of Appeal s for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for t he Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protecti on Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrim ination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of thi s decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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 12 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 13 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no 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 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 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. 14 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	BENOIT_JEFFERY_B_DC_3443_21_0386_I_1_FINAL_ORDER_1919901.pdf	2022-04-27	null	DC-3443	NP
4,445	https://www.mspb.gov/decisions/nonprecedential/MALONE_KEVIN_DC_0845_21_0371_I_1_FINAL_ORDER_1919926.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KEVIN MALONE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC-0845 -21-0371 -I-1 DATE: April 27, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin Malone , Washington, D.C., pro se. Alison Pastor , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal challenging the reconsideration decision of the Office of Personnel Management (OPM) to collect an overpayment of Federal Employees’ Retirement System (FERS) annuity payments for lack of jurisdiction after OPM 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 rescinded its reconsideration decision. Gene rally, 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 appli cation of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the statement that the matter is moot , we AFFIRM the initial decision , still dismissing the appeal for lack of jurisdiction . ¶2 On re view, the appellant a ssert s that OPM withheld funds from his monthly annuity to recover the alleged overpayment even though it claimed that it had rescinded its reconsideration decision. Petition fo r Review (PFR) File, Tab 1 at 7. The Office of the Clerk of the Board issued a Show Cause Orde r instructing the parties to provide evidence and argument regarding the appellant’s assertion . PFR File, Tab 6. OPM responded that it erroneously withheld funds from the appellant’s annuity each month between June and December 2021 , and that it had susp ended the collection efforts as of December 30, 2021 . PFR File, Tab 7 at 4. OPM filed documentation showing that it had authorized a refund of the withheld payments , totaling $4,410.70 , which wou ld be repaid to the appellant in his February 2022 annuity check. Id. at 4-8. The appellant has f iled two responses, wherein he confirms that OPM withheld funds from his annuity payments . PFR File, Tab 8 at 11 . Because OPM has rescinded its reconsideration decision and collection efforts have been sus pended, we agree with the administrative judge 3 that the Board lacks jurisdiction over this appeal. See Glasgow v. Office of Personnel Management , 103 M.S.P.R. 531 , ¶ 5 (2006) (stating that , if OPM completely rescinds a reconsideration decision, the Board no longer retains jurisdiction over the appeal in which that reconsi deration decision i s at issue, and the appeal must be dismis sed). To the extent the administrative judge dismissed this appeal as moot, Initial Appeal File, Tab 11, Initial Decision at 2, we vacate that finding and clarify that , if OPM issues a reconsideration decision affecting the appellant’s rights or interests under FERS, he will again be able to appeal OPM’s reconsideration decision to the Board. See 5 U.S.C. § 8461 (e)(1); Tamayo v. Office of Personnel Management , 56 M.S.P.R. 620 , 622 (1993) ; 5 C.F.R. § 841.308 . ¶3 The appellant’s remaining arguments on review do not provide a basis to disturb the initial decision. Regarding the appellant’s assertions related to the merits of a prior Board appeal against the Department of Labor and a settlement agreement that stemme d therefrom, PFR File, Tab 1 at 5-7, Tabs 8 -9, we note that the appellant has not filed a petition for enforcement of the settlement agreement, and we therefore do not address those assertions. The appellant has also requested that the Boar d waive the all eged overpayment. PFR File, Tab 1 at 5 -6, 9, Tabs 8 -9. H owever, as set forth herein , the Board lacks jurisdiction over this issue because OPM rescinded its reconsideration decision . Accordingly, we deny the petition for review and affirm the initial dec ision as explicitly modified herein to clarify the basis of the dismissal. 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. 4 review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not prov ide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final deci sion, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for mo re information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit , you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular 5 relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, colo r, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWeb sites.aspx . 6 Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). Yo u must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case , and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be a ddressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to y ou only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 describe d in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court 7 of appeals of 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 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 Contact information for the courts of appeals can be 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	MALONE_KEVIN_DC_0845_21_0371_I_1_FINAL_ORDER_1919926.pdf	2022-04-27	null	DC-0845	NP
4,446	https://www.mspb.gov/decisions/nonprecedential/RHODES_TONYA_EVETTE_AT_0752_12_0316_X_1_ORDER_1919347.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TONYA EVETTE RHODES, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0752 -12-0316 -X-1 DATE: April 26, 2022 THIS ORDER IS NONPRECEDENTIAL1 Tonya Evette Rhodes , Seffner , Florida, pro se. Kristin Langwell , Esquire, St . Petersburg, Florida, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member ORDER ¶1 The administrative judge issued a compliance initial decision finding the agency noncompliant with the March 15, 2013 initial decision in the underlying removal appeal. Rhodes v. Department of Veterans Affairs , 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 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 No. AT-0752 -12-0316 -C-1, Compliance File, Tab 11, Compliance Init ial Decision (CID). On April 13, 2015, September 25, 2015, and July 18, 2016, we issued nonprecedential orders finding the agency in partial compliance. Rhodes v. Department of Veterans Affairs , MSPB Docket No. AT -0752 -12-0316 -X-1, Compliance Referral Fi le (CRF), Tab 5 (April 13, 2015 Order ), Tab 12 (September 25, 2015 Order ), and Tab 30 (July 18, 2016 Order ). For the reasons discussed below, we now find the agency noncompliant on the two outstanding issues and order appropriate relief. DISCUSSION OF ARGUMENTS AND EVIDEN CE OF COMPLIANCE ¶2 On March 15, 2013, the administrative judge issued an initial decision reversing the appellant’s removal and requiring the agency to restore her effective February 15, 2012. Rhodes v. Department of Veterans Affairs , MS PB Docket No. AT-0752 -12-0316 -I-1, Initial Appeal File (IAF), Tab 47, Initial Decision. The decision required the agency to pay her appropriate back pay and benefits. Id. Neither party filed a petition for review, and the initial decision became the final decision of the Board. ¶3 Following the appellant’s petition for enforcement, on December 10, 2013, the administrative judge issued a compliance initial decision finding the agency in noncompliance with the initial decision. CID. The administrative judg e held that the agency failed to adequately explain its back pay calculations, including how it calculated the back pay period and interest amounts. CID at 3 -4. The administrative judge further held that the agency failed to provide evidence to show that it made appropriate transfers to the appellant’s Thrift Savings Plan account and her Federal Employees’ Group Life Insurance . Id. Finally, the administrative judge found that the agency admitted it may have erroneously submitted a debt notice to the Off ice of Personnel Management regarding the appellant’s Federal Employees Health Benefits (FEHB) plan and had not provided 3 evidence that it corrected such error. Id. Neither party filed a petition for review of the compliance initial decision. ¶4 On April 1 3, 2015, the Board issued a nonprecedential order finding the agency in noncompliance and ordering it to submit additional evidence. CRF, Tab 5. On September 25, 2015, the Board issued a second nonprecedential order that found the agency compliant on som e issues and noncompliant on others. CRF, Tab 12. Finally, on July 18, 2016, the Board issued a third nonprecedential order that found the agency compliant on four issues and noncompliant on two issues. CRF, Tab 30 at 4. The Board ordered the agency to submit the following information: 1. Evidence that the agency expressly notified the appellant of the amount owed for retirement contributions and her options with regard to seeking waiver of this debt. 2. A narrative explanation regarding how the FEHB premiums erroneously withheld between April 1, 2012, and May 5, 2013, were applied to the appellant’s outstanding annual leave debt. Id. at 6, 7 -8; CRF, Tab 12 at 10 -11. ¶5 Following this order, both parties filed submissions. CRF, Tabs 32 -34, 36-38, 40 -44.2,3 For the reasons discussed below, we find the agency 2 On March 5, 2021, the appellant filed a pleading and a number of documents with the Board’s Atlanta Regional Office, which docketed her submission as a second petition for enforcement of the Board’s March 15, 2013 f inal decision. Rhodes v. Department of Veterans Affairs , MSPB Docket No. AT-0752 -12-0316 -C-2, Compliance File (C -2 CF), Tab 1. In a March 19, 2021 compliance initial decision, the administrative judge found that the appellant’s submission pertained to ma tters addressed in the first compliance initial decision and pending before the Board in this compliance referral matter. C -2 CF, Tab 7, Compliance Initial Decision. Accordingly, she determined that the second petition for enforcement had been docketed i n error and dismissed it. Id. The documents submitted in the improperly docketed second compliance file have been added to the compliance referral file. CRF, Tab 42. 3 On February 2 2, 2022, the appellant filed a motion requesting leave to submit “addi tional new and material evidence.” We grant the appellant’s motion and have considered her submissions, which include a May 28, 2015 Equal Employment 4 noncompliant on both issues. We order the agency to waive the debt the appellant owes for retirement contributions and to refund, with interest, the amounts withheld for the appellant’s FEHB premiums. ANALYSIS ¶6 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation she would have been in had the wrongful personnel action not occurred. House v. Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. Vaughan v. Departmen t of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011). An agency’s assertions of compliance must include a clear explanation of its complia nce actions supported by documentary evidence. Id. 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). Waiver Notice for Debt Generated by Lack of Retirement Contributions ¶7 In our April 13, 2015 Order, we found tha t the agency satisfactorily explained that the appellant owed a debt for retirement contributions that the agency erroneously failed to deduct from her back pay payment. CRF, Tab 5 at 9. However, in our September 25, 2015 Order, we found that the agency had failed to submit evidence that it provided her any applicable notice and opportunity to request waiver of this debt mandated by her collective bargaining agreement. CRF, Tab 12 at 8 -9. Opportunity Commission, Office of Federal Operations decision, her responses to her proposed termination, transcripts from the equal employment opportunity investigation, and work -related emails and letters. CRF, Tabs 43-44. However, these documents pertain to the merits of the appellant’s termination and to her claims of discrimination, and they are not re levant to the issues now before the Board —i.e., the agency’s compliance with the Board’s final order. 5 ¶8 On February 10, 2016, the agency submitted a copy of the waiver no tice it had sent the appellant on April 25, 2014. CRF, Tab 24 at 27 -29. The appellant apparently did not receive the notice because it was sent to the wrong address. CRF, Tab 25 at 3. The agency contended that its provision of the notice in its pleading corrected this deficiency. CRF, Tab 26 at 5. We disagreed because the letter submitted by the agency did not inform the appellant how to request waiver of her debt. CRF, Tab 30 at 6. We ordered the agency to send the appellant a new copy of the comple te waiver letter and notice, dated the day it was sent so that she would have the full time to request waiver. Id. ¶9 On August 3, 2016, the agency filed a copy of the letter it sent to the appellant in response to our order. CRF, Tab 32. Strangely, contr ary to the instructions in our order, the agency did not send a new copy of the waiver letter updated with a new date; rather, it appears the agency merely resent a copy of the letter dated April 25, 2014. Id. at 7. Not only does this not satisfy the requirements of our order, it arguably prejudices the appellant because it is not clear that she can seek waiver of her debt at this late date. The waiver instructions state that waiver request must be received within 3 years following the date the debt was discovered. Id. at 12. This date is unclear from the letter. Because the agency has not proven its compliance on this issue, we find it noncompliant and order the agency to waive this debt ($74.28 according to the letter, id. at 7), plus any interest o utstanding as a result of the appellant’s failure to pay the debt. The agency must submit evidence that it has waived this debt and any interest, in accordance with this order. FEHB Premiums Withheld after the Back Pay Period ¶10 In our September 25, 2015 Order, we held that the agency failed adequately to explain whether and how it refunded the $4,366.56 it owed the appellant for FEHB premiums erroneously withheld between April 1, 2012, and May 5, 2013 ($198.48 per pay period x 22 pay periods). CRF, Tab 12 at 9. Although the 6 agency claimed that it had credited the full amount to the appellant’s outstanding annual leave debt, its documents appeared to show that it credited (if anything) only $176.91 per pay period for 16 pay periods ($2,830.56), leaving it $ 1,536.00 short. Id. (discussing agency evidence). We ordered the agency to explain this discrepancy. Id. at 11; CRF, Tab 30 at 7 -8. ¶11 On October 28, 2016, the agency submitted its explanation. CRF, Tab 36. The agency claimed that rather than refund the amount owed for improperly withheld FEHB premiums as a lump sum, it was “offsetting” this amount against the appellant’s $6,800.63 debt for annual leave (which we previously found to be valid, CRF, Tab 12 at 7 -8). CRF, Tab 36 at 4. These offset deduction s are made monthly from the appellant’s annuity. Id. The amount, $176.91, is the maximum the agency can deduct monthly pursuant to its handbook. Id. at 6-11. ¶12 The agency’s explanation makes no sense. The agency states that it is offsetting —i.e., deducti ng—these amounts from the appellant’s annuity, but the agency is not entitled to deduct an amount that it owes the appellant. Rather than deducting anything, the agency should have credited the amount against the appellant’s outstanding annual leave debt (as indeed it originally claimed to have done, though without any evidentiary support). Had it done so, the appellant would have owed $2,434.07 to cover her annual leave debt ($6,800.63 minus $4,366.56). Instead, documents submitted by the appellant show that she has paid the entire amount of the $6,800.63, through monthly deductions or garnishments of $176.91. CRF, Tab 38 at 4 , Tab 45 at 4 . The appellant’s evidence therefore shows that the deductions the agency claims to be “offsets” or “credits” for h er FEHB debt were in fact deductions to pay for her annual leave debt, and the agency —contrary to its repeated claims —never refunded the amounts it improperly withheld to cover her FEHB premiums. ¶13 The agency has submitted nothing of substance to counter t his evidence; its submissions merely reiterate in conclusory fashion that it is “offsetting” her annual leave debt, with no apparent understanding that it is essentially compelling 7 the appellant to pay two debts when she owes the agency only one. CRF, Tab 40 at 4-5. To the extent the agency relies on its claim that it “canceled” the FEHB debt and “the amounts taken to satisfy the FEHB debt were transferred to the lump sum debt,” id. at 11, the evidence submitted by the appellant shows otherwise. CRF, Tab 38 at 4 , Tab 45 at 4 . ¶14 Accordingly, we find the agency in noncompliance on this issue and order it to pay the appellant $4,366.56 plus interest. The interest calculation should begin from the dates the FEHB premiums were originally withheld and continue t o within 30 days of the date the payment is made. See 5 U.S.C. § 5596 (b)(2)(B). The agency must submit a narrative explanation and documentary evidence of its interest calculations, as well as do cumentary evidence of a check or other payment made to the appellant for the principal and interest. Further Action Needed for Compliance ¶15 Within 30 calendar days of the date of this Order, the agency shall submit the evidence discussed above. If the agency fails to submit the required information, the Board may again issue an order to show cause why sanctions should not be imposed against the responsible agency o fficial pursuant to 5 U.S.C. § 1204 (e)(2)(A) and 5 C.F.R. § 1201.183 (c). ¶16 The appellant shall file a response within 21 calendar days of the agency’s submission. Failure to submit a response within the required time period may cause the Board to assume the appellant is satisfied and dismiss the petition for enforcement. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RHODES_TONYA_EVETTE_AT_0752_12_0316_X_1_ORDER_1919347.pdf	2022-04-26	null	AT-0752	NP
4,447	https://www.mspb.gov/decisions/nonprecedential/RHODES_TONYA_EVETTE_AT_0752_12_0316_I_1_FINAL_ORDER_1919355.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TONYA EVETTE RHODES, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-0752 -12-0316 -I-1 DATE: April 26, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tonya Evette Rhodes , Seffner, Florida, pro se. Kristin Langwell , Esquire, St . Petersburg, Florida, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which reversed the agency’s chapter 75 removal action . For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.11 4(e), (g). 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 February 15, 2012, the agency removed the appellant from her position as a GS -12 Veterans Service Representative (Rating) based on the charge of false reporting. Initial Appeal File (IAF), Tab 7 at 27, 29 -31, 140 -47. The appellant appealed her removal to the Board.2 IAF, Tab 1. Following a hearing on the matter, the administrative judge issued a March 15, 2013 initial decision reversing the agency’s removal action, concluding that the agency had failed to prove its charg e by preponderant evidence . IAF, T ab 48, Initial Decision (ID) at 1-2, 16. The administrative judge also concluded that the appellant had failed to prove her affirmative defenses of retaliation for prior protected equal employment opportunity (EEO) activ ity and race discrimination.3 ID at 13 -15. She ordered the agency to cancel its removal action and to retroactively restore the appellant to her position and to provide her with appropriate back pay . ID at 16. The administrative judge notified the appe llant that the initial decision would become final on April 19, 2013, unless a petition for review was filed by that date. ID a t 18. The appellant did not file a petition for review of the initial decision ; however, on July 30, 2013, she filed a petition for enforcement, alleging that the agency had failed to comply with the administrative judge’s order as set forth in the March 15, 2013 initial decision. Rhodes v. Department of Veterans Affairs , MSPB Docket No. AT-0752 -12-0316 -C-1, Compliance File, Tab 1 at 1-3. 2 In our review of the record, we determined that IAF, Tab 28, which was subject to an in camera review by the administrative judge because of the agency’s concerns regarding the Privacy Act, IAF, Tab 27 at 7 -8, was inadvertently mad e part of the official record. Because the administrative judge determined that the appellant was not entitled to receive the documents contained therein , IAF, Tab 32 at 2, and because t he documents are not relevant or necessary to the adjudication of this appeal, see 5 U.S.C. § 552a (e)(1), we hereby remove IAF, Tab 28 from the record and return the documents contained therein to the agency. 3 The administrative judge declined to analyze the appellant’s claim of harmful procedural error, explaining that the claim had been rendered moot by the agency’s failure to prove its charge. ID at 16. 3 DISCUSSION OF ARGUME NTS ON REVIEW ¶3 Approximately 8 years later, on March 5, 2021, the appellant submitted to the Board a filing that was initially docketed as a second petition for enforcement . Rhodes v. Department of Veterans Affairs , MSPB Docke t No. AT-0752 -12-0316 -C-2, Second Compliance File (CF) , Tab 1. On March 19, 2021, t he administrative judge dismissed the petition for enforcement . CF, Tab 7, Compliance Initial Decision (CID) at 1-2. In so doing, she explained that the appellant ’s filin gs had raised matters previously addressed in (1) the March 15, 2013 initial decision regarding the agency’s chapter 75 removal action and (2) the compliance proceedi ng already pending before the Board. C ID at 2. Accordingly, she forwarded the matter to the Office of the Clerk of the Board for docketing (1) as a petition for review , and (2) for inclusion and consideration in the appellant’s compliance proceeding , i.e., Rhodes v. Department of Veterans Affairs, MSPB Docket No. AT-0752 -12-0316 -X-1. Id. Here , we construe the appellant’s submissions as a petition for review of the administrative judge’s March 15, 2013 initial decision. ¶4 In her filings , the appellant assert s that , subsequent to the initial deci sion, she prevailed in an EEO claim against the agency . Petition for Review (PFR) File, Tab 1 at 4, Tab 3 at 3 . She also avers that she has continued to experience “harassment, disparate treatment, and offensive conduct from the [a]gency.” PFR File, Tab 1 at 4. The appellant provides numerous documents, to include medical records , email correspondence with agency officials, financial information , and documents that were part of the record in her chapter 75 removal appeal, e.g., PFR File, Tab 1 at 17-39, Tab 2 at 10-36. ¶5 Following its receipt of these filings , the Office of the Clerk notified the appellant that her petition for review was untimely and explained that she must file a motion asking the Board to accept the petition for review as untimely and /or to waive the time limit for good cause. PFR File, Tab 4 at 2. In response, the 4 appellant has filed a motion explaining that she received a favorable EEO decision on May 28, 2015 , and she provides a copy of the subject decision . PFR File, Tab 5 at 4, 6-9. She aver s that the EEO decision ordered disciplinary action for the same management o fficials who sought her removal in 2012 . Id. at 4-5. The appellant also reference s and provides a medical letter dated February 7, 2012 , wherein a physician indic ated that the appellant’s work environment had caused her “a significant level of psychological distress” and recommended that she be “taken out of work” as of February 3, 2012.4 Id. at 4-5, 10. Although unclear, the appellant ostensibl y asserts that she became aware of the May 28, 2015 EEO decision during the “filing/dismissing of [her] lawsuit for EEO in 2020.” Id. at 5. The agency has not responded to the appellant’s motion .5 ¶6 A petition for review must be filed within 35 days after the issuance of the initial decision, or, if the petitioner shows that she received the initial decision more than 5 days after the date of the issuance, within 30 days after the date she received th e initial decision. 5 C.F.R. § 1201.114 (e). Here, the initial decision was issued on March 15, 2013 , and sent to the appellant electronically the same day. IAF, Tab 49 at 1. The appe llant does not allege that she did not receive the initial decision within 5 days of its issuance; indeed, she acknowledges that she received the same “on or around March 15, 2013.” PFR File, Tab 5 at 4. Accordingly, her petition for review is untimely b y approximately 8 years. See 5 C.F.R. § 1201.114 (e). ¶7 The Board will waive the time limit for filing a petition for review only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (g). 4 The appellant also provides with her motion a September 21, 2010 email indicating that she was nominated for the Fall 2010 “Employee of the Quarter H onor Roll.” PFR File, Tab 5 at 11. 5 Following the submission of her motion, the appellant attempted to submit another pleading, which the Of fice of the Clerk rejected and returned to her because it failed to comport with Board regulations. PFR File, Tab 6 at 1 -2. 5 To establish good cause for an untimely filing, the appellant must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). In determining whether there is good cause, the Board considers the length of the delay, the reasonableness of the excuse and showing of due diligence, whether the appellant 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 that similarly shows a causal relationship to her inability to file a timely petition. See Wyeroski v. Department of Transportation , 106 M.S.P.R. 7 , ¶ 7, aff’d , 253 F. App’x 950 (Fed. Cir. 2007). ¶8 Here, w e find that the appellant has not demonstrated good cause for the untimely filing of her petition for review. To this end, h er 8-year filing delay is significant ; indeed, the Board has previously found delays of a much shorter duration not minimal . See, e.g., Dean v. U.S. Postal Service , 100 M.S.P.R. 556 , ¶ 5 (2005) (finding a 6 -month delay not minimal); Floyd v. Office of Personnel Management , 95 M.S.P.R. 260 , ¶ 6 (2003) (finding a 1 -month delay not minimal). The appellant’s pro se status alone does not excuse this lengthy delay. See May v. U.S. Postal Service , 108 M.S.P.R. 55 7, ¶ 10 (2008) (finding that the appellant’s pro se status did not excuse his lengthy 8 -year filing delay) . ¶9 Moreover, the argument contained in the appellant’s petition for review and supplements thereto does not establish good cause for her untimeliness.6 To this 6 We acknowledge that the appellant has provided medical evidence indicating that she has experienced periods of decompensation. PFR File, Tab 1 at 18, Tab 5 at 10. However, the record reflects that the appellant has nonetheless continually and meaningfully participated in the compliance matter pending before the Board throughout the 8 -year period between the issuance of the March 15, 2013 initial decision and the filing of her petition for review. Thus, we find that she has failed to demonstrate good cause for her untimely filing on the basis of illness, or mental or physical capacity. See Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998) ; see also Stribling v. Department of Education , 107 M.S.P.R. 166 , ¶ 8 (2007). 6 end, the appellant seemingly argues that two documents warrant review of the initial decision , i.e., a 2012 medical record and a 2015 EEO decis ion. PFR File, Tab 5 at 4-5. The appellant, however, has not shown that her 2012 medical record was previously unavailable to her despite her due diligence . See Wilson v. General Services Administration , 15 M.S.P.R. 45 , 47 (1983) (finding that the appellant had not shown good cause for his untimeliness because, among other things, he failed to show that the “new” information on which he relied was unavailable, despite due diligence, before the record closed). Moreover, although the May 28, 2015 EEO decision was issued subsequent to the initial decision, the appellant did not file her petition for review until March 202 1, some 5 years later; thus, she has failed to show tha t she acted promptly upon learning of the apparent basis of her petition for review . See Maples v. Defense Logistics Agency , 31 M.S.P.R. 667 , 670 (1986) (explaining that the appellant was obligated to exercise due diligence in pursuing his appeal in a timely manner once he had reason to believe that he had a basis to seek review ), aff’d , 824 F. 2d 980 (Fed. Cir. 1987) (Table) . To the extent the appellant asserts that she was unaware of the 2015 EEO decision until 2020, PFR File, Tab 5 at 5, a different outcome is not warranted. Indeed, even assuming that the appellant was somehow unaware of the decision in her EEO matter until December 31, 2020, she nonetheless failed to file her petition for review until March 2021, at least 3 months after she admittedly learned of the same . See Cassidy v. U.S. Postal Service , 65 M.S.P.R. 86, 89 (1994) ( finding that an appellant who delayed filing his petition for review for 5 weeks after becoming aware of the alleged grounds for requesting review failed to show good cause for his untimely petiti on). ¶10 Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regardin g the agency’s removal action . 7 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 summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. 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 9 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you 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 commercial delivery or by a method requiring a signature, it must be 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). 10 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.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 Circ uit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 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. 11 Board neither endorses the services provided by any attorney nor warrants that any attor ney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RHODES_TONYA_EVETTE_AT_0752_12_0316_I_1_FINAL_ORDER_1919355.pdf	2022-04-26	null	AT-0752	NP
4,448	https://www.mspb.gov/decisions/nonprecedential/PIRKKALA_STEVEN_P_AT_0752_15_0454_M_1_FINAL_ORDER_1919405.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD STEVEN P. PIRKKALA, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER AT-0752 -15-0454 -M-1 DATE: April 26, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Steven P. Pirkkala , Pembroke Pines , Florida , pro se . Gail Elkins , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 This case is before the Board on remand from the U.S. Court of Appeals for the Federal Circuit to consider whether medical evidence that the appellant submitted before the administrative judge established good cause for his delay in filing an appeal of his removal . As discussed below, we have carefully 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 considered the appellant ’s medical evidence and find that it is not sufficient to establish good cause for his delay in filing . BACKGROUND ¶2 On March 27, 2015, six years after the March 27, 2009 effective dat e of his removal from his position with the agency’s Bureau of Prisons, the appellant filed a Board appeal challenging his removal. Pirkkala v. Department of Justice , MSPB Docket No. AT -0752 -15-0454 -I-1, Initial Appeal File (IAF), Tab 1 , Tab 10 at 123 -27. The administrative judge issued an order notifying the appellant that his appeal appeared to be untimely filed and direct ing the appellant to submit evidence and argument establishing that good cause existed for his filing delay. IAF, Tab 6. Thereafter , among other filings, the appellant submitted a considerable volume of medical evidence, which indicated that, at various points during the 5-year time period between February 11, 2009 , and February 12, 2015, he received treatment for shoulder conditions , depression, anxiety, and post-traumatic stress disorder (PTSD). IAF, Tab 14 at 15 -206. ¶3 The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, without addressing whether the appeal was timely filed . IAF, Tab 15, Initial Decision . The appellant filed a petition for review of the initial decision. Pirkkala v. Department of Justice , MSPB Docket No. AT -0752 -15- 0454 -I-1, Petition for Review (PFR) File, Tab 3. On review, the Board afforded the appellant a second opportunity to submit evidence and argument on the issue of the timeliness of his appeal . PFR File, Tab 7 . Specifically, the Board provided the appellant an opportunity to submit evidence covering the period from April 26, 2009, through March 27, 2015, t he time period of his delay in filing. Id. The Board informed the appellant of his burden to show good cause for the delay in filing, including his burden if he was asserting that a medical condition might have affected his ability to timely file. Id. at 2-3. In response, among other things, the appellant submitted medical evidence , PFR File, Tabs 9, 3 11, 14, including a September 12, 2012 letter from a psychiatrist , which stated that he began treating the appellant for extreme anxiety and depression on August 10, 2010 , PFR File, Tab 11 at 8. ¶4 The Board found that it had jurisdiction over the appeal (thus reversing the administrative judge ’s decision on this issue) , but dismissed the appeal as untimely filed without good cause shown for the delay. Pirkka la v. Department of Justice , 123 M.S.P.R. 288, ¶¶ 5-24 (2016). The Board found that the appellant ’s appeal was untimely filed by nearly 6 years; that the appellant established good cause for the filing delay for the majority of that time; but that he failed to demonstrate good cause for his filing delay during the 7-month period between August 27, 2009 , and March 27, 2010. Id., ¶¶ 14-24. Citing a September 12, 2012 letter from the appellant ’s psychiatrist, the Board found that the appellant began treatment for extreme anxiety and depression on August 10, 2010, and that the appellant failed to show tha t these conditions affected his ability to file a Board appea l prior to that date. Id., ¶¶ 21-22; PFR File, Tab 11 at 8. Finally, the Board found that the appellant did not “equate ” his extreme anxiety and depression with his PTSD, which in any event, wa s under control based on evidence that he submitted in a previous disability retirement appeal before the Board . Pirkkala , 123 M.S.P.R. 288 , ¶¶ 21-22. ¶5 The appellant filed a petition for review with the U.S. Court of Appeals for the Federal Circuit. Notice of Appeal, Pirkkala v. Merit Systems Protection Board , No. 2016 -2117 (Fed. Cir. Apr. 6, 2017) . In his brief before th e court, among other things, the appellant argued that the Board failed to consider medical evidence that he submitted before the administrative judge , reflect ing that on several occasion s between December 7, 2009 , and February 9, 2010, the appellant was treated for depression and PTSD at a Veterans Affairs Medical Center (VAMC) . Corrected Brief for Petitioner at 5 -6, 11, 21 -23, Pirkkala , No. 2016 -2117, 2016 WL 4542151, at 5 -6, 11, 21 -*23. After reviewing the record , the Board agree d that it both erred in fai ling to consider this evidence, and 4 in finding that the record reflected that the appellant did not begin treatment for extreme depression until August 10, 2010. Respondent’s Unopposed Motion to Vacate Decision in Part and for Remand at 5-6, Pirkkala , No. 2016 -2117 . For this reason, the Board requested that the court remand the case to the Board to make further findings regarding the timeliness issue, including, but not limited to, whether the appellant established that his ability to file his Board appea l was impaired by illnesses or medical conditions during the 7-month time period between August 27, 2009 , and March 27, 2010. Id. ¶6 The court granted the Board ’s motion and remanded this matter to the Board for further proceedings. Pirkkala v. Merit Syste ms Protection Board , No. 2016 -2117 ( Fed. Cir. Apr. 6, 2017). On remand, we have focused on the evidence relevant to the time period from August 27, 2009 , to March 27, 2010, identified in the Board’s motion to the court.2 Respondent’s Unopposed Motion to Vacate Decision in Part and for Remand at 5-6, Pirkkala , No. 2016 -2117 . ANALYSIS ¶7 As noted, t he agency remove d the appellant effective March 27, 2009. IAF, Tab 10 at 123 -27. He filed a grievance of the removal, which was ultimately resolved on August 27, 2009 , when an arbitrator declined to act on it because the appellant’s union would not represent the appellant . IAF, Tab 11 at 10. The Board previously found good cause for the appellant ’s failure to appeal his 2 On November 17, 2017, the appellant filed a pleading in which he sought confirmation that his appeal was still pending a decision on remand from the Federal Circuit and requested to submit a Novemb er 7, 2017 summary of benefits from the Department of Veterans Affairs. Pirkkala v. Department of Justice , MSPB Docket No. AT -0752 -15- 0454 -M-1, Court Remand File, Tab 2. Even if the evidence the appellant has submitted is new, it is not relevant to the ti me period at issue and is not otherwise material to the outcome of this appeal . Id. at 4; see 5 C.F.R. § 1201.114 (k) ( providing that, once the record closes on review, no additional evidence will be accepted unless it is new and material and was not readily available before the record closed) . Accordingly, the appellant’s request is denied. 5 removal between April 273 and August 27, 2009, because the appellant was pursuing a grievance of his removal. Pirkkala , 123 M.S.P.R. 288 , ¶ 15. ¶8 At some point prior to March 27, 2010, t he appellant applied for disability retirement benefits with the Office of Personnel Management (OPM) on the basis of his sh oulder injury and PTSD.4 Pirkkala v. Office of Personnel Management , MSPB Docket No. AT -844E-12-0029 -I-3, Final Order , ¶ 2 (Feb. 20, 2015). The Board accepted the appellant ’s asser tion that he believed that his disability retirement application also constituted an app eal of his removal, finding the assertion supported by the fact that OPM based its denial of disability retirement benefits on his removal for cause and by the medical evidence showing that his anxiety and depression may have interfere d with his ability to deal with more than one case at a time. See Pirkkala , 123 M.S.P.R. 288, ¶¶ 17-18. Thus, the Board found that the appellant’s potential confusion caused by the OPM appeal established good cause for the pe riod after March 27, 2010. Id., ¶¶ 22-23. Therefore, the critical time period to determine whether the appellant ’s appeal of his removal was timely filed is the 7-month period between August 27, 2009, when the arbitrator declined to act on the appellant’s challenge of his removal, 3 The Board’s reg ulation s provide that an appeal must be filed with the Board no later than 30 days after the effective date of the agency’s action, or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R. § 1201.22 (b)(1). The agency effected the removal on March 27, 2009. IAF, Tab 10 at 23. To be timely, the appellant must have filed his appeal by April 27, 2009. 4 The records in the appellant’s app eals do not establish the exact date that he applied for disability retirement benefits. OPM’s regulations provide that an application for disability retirement must be filed within 1 year of an employee’s separation. 5 C.F.R. § 831.1204 (a). Thus, the application must have been filed by March 27, 2010, a year after the appellant’s removal. IAF, Tab 10 at 123. T he appellant acknowledges that he did not file his application for disability retirement for “many months after the grievance and August 2009 unfair Arbitration denial.” PFR File, Tab 10 at 7. 6 and March 27, 2010 , the last day on which the appellant could have filed for disability retirement benefits with OPM.5 ¶9 The Board will waive the time limit for filing an appeal if the appellant has shown good cause for the filing delay . 5 C.F.R. § 1201. 22(c); see Smith v. Office of Personnel Management , 117 M.S.P.R. 527, ¶ 6 (2012). The burden is on the appellant to demonstrate excusable delay. 5 C.F.R. § 1201.56 (b)(2) (i)(B); see Mendoza v. Merit Systems Protection Board , 966 F.2d 650 , 653 (Fed. Cir. 1992) (en banc). In determining if an appellant has shown good cause, the Board considers the length of the delay, the reasonableness of the appellant ’s excuse and any showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control t hat affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file. Miller v. Department of the Army , 112 M.S.P.R. 689 , ¶ 13 (2009); see Walls v. Merit Systems Protection Board , 29 F.3d 1578 , 1582 (Fed. Cir. 1994). To establish that an untimely filing was the result of health issues, the party must : (1) identify the time period during which he suffered from the illness; (2) submit medical evidence showing that he suffered from the alleged illness during that time period; and (3) explain how the illness prevented him from timely filing his appeal or a request for an extensi on of time. Miller , 112 M.S.P.R. 689, ¶ 13; Lacy v. Department of the Navy , 78 M.S.P.R. 434 , 437 (1998). As noted, t he appellant was advised of these crit eria in the Board ’s show cause o rder. PFR File, Tab 7 . 5 The appellant appealed OPM’s denial of his application for disability retirement benefits based on the fact that his former employing agency removed him for misconduct. Pirkkala , MSPB Docket No. AT -844E -12-0029 -I-3, Final Order, ¶ 2. The Board reversed OPM’s decision and awarded the appellant disability retirement benefits, noting the removal for cause but finding that his s houlder condition was inconsistent with the requirements of his work environment in a prison. Id., ¶¶ 5, 14. However, the appellant’s shoulder condition is not an issue in determining whether he established good cause for untimely filing an appeal of his removal. 7 ¶10 The medical evidence submitted by the appellant to the administ rative judge established that his treatment for depression began at a VAMC on December 7, 2009. IAF, Tab 14 at 200. The psychiatrist ’s notes of that appointment reflect that the appellant reported depressed mood, loss of motivation and inter est, low concentration, and trouble sleeping.6 Id. at 201. According to the notes, the appellant “was never seen by a VAMC psychiatrist in the past [and] had been under the care of a private psychiatrist Dr. F.S. since less than a year ago .” Id. The ap pointment notes also state that Dr. F.S. “ prescribed Pexeva and Clonazepam to treat symptoms of depression and PTSD, however [the appellant] ran out of them because he lost his insurance. ” Id. The notes record the appellant ’s score on a test for depressi on as indicative of severe depression. Id. at 204. The patient notes for subsequent psychiatric visit s to the VAMC through March 31, 2010, observe that the appellant continued to suffer from depression ; although the notes from a February 9, 2010 appointment reflect that, while the appellant continued to feel depressed, he “feels good” when he took Citalopram, the med ication he had been prescribed, althoug h it also made him tired. Id. at 188-89. ¶11 As noted, the appellant commenced treatment at the VAMC on December 7, 2009, and at some point prior to that was under the treatment of Dr. F.S. Id. at 200-01. There is no evidence in the record regarding precisely when the appellant saw Dr. F.S., his assessment of the appellant’s condition, or the exten t to which it was controlled by treatment and medication , although the notes generated by the VAMC psychiatrist show that Dr. F.S. prescribed medication to 6 The VAMC medical records also mention that the appellant suffers from PTSD. IAF, Tab 14 at 203. The psychiatr ist noted that, as of December 7. 2009, the appellant already was receiving needed treatment for that condition. Id. The psychiatri st’s statement i s consistent with and supports the Board’s finding in the appellant’s removal appeal that his PTSD was under control. See Pirkkala , 123 M.S.P.R. 288 , ¶ 17. Thus, it is not a significant factor in determining the existence of good cause in this appeal, and in any event, there is no medical evidence specifically addressing the dispositive time period. 8 treat the appellant’s depression. Id. at 201. The record does reflect, however , that between March and August 2009, the appellant pursued a grievance of his removal and, when the union decided not to represent him at arbitration, he filed an unfair labor practice complaint against the union with the Federal Labor Relations Authority.7 IAF, Tab 10 at 118, Tab 11 at 5 -7, 11 -12; PFR File, Tab 11 at 4-5. ¶12 As set forth above, to establish good cause for an untimely filing based on a medical condition, an appellant must, among other things, submit medical evidence showing that he suffered from the conditio n during that time period in question. Miller , 112 M.S.P.R. 689 , ¶ 13; Lacy , 78 M.S.P.R. at 437. Here, the evidence shows that the appellant suffered from significant depression in December 2009 and was previously treated for depression, but there is no medical evidence ad dressing the period from August 27, 2009, when the arbitrator informed the appellant that he would not hear his case , and December 7, 2009, when the appellant began treatment with VAMC. Moreover, as discussed above, immediately prior to th e arbitrator’s withdrawal from the appellant’s case , the appellant engaged in litigation . There is no explanation in the reco rd why the appellant was capable of pursuing his rights in those ways but soon thereafter was incapable of filing a Board appeal. Thus, after reviewing all of the evidence, we find that the appellant has failed to show that his medical condition prevented him from appealing his removal between August and December 2009. See Lacy , 78 M.S.P.R. at 437. We find that t he appellant has not presented evidence of the existence of circumstances beyond his cont rol that affected hi s ability to file or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to file his Board appeal for the 3-month period of time between 7 In a settle ment agreement before the Federal Labor Relations Authority , the union agreed to a posting that it would refrain from informing bargaining unit employees who were not members of the union that it would not take their grievances to arbitration. IAF, Tab 13 at 9. 9 August and December 2009. Moreover, the medical evidence from February 9, 2010, indicates that th e appellant “feels good” when taking antidepressant medication and he has not explained why he could not file his appeal during that time. IAF, Tab 14 at 189. ¶13 In sum, we find that the appellant ’s filing delay was significant and he has not shown good cau se for the delay. Crook v. U.S. Postal Service , 108 M.S.P.R. 553, ¶ 6 (finding a 1 -month delay “significant”), aff’d , 301 F. App’x 982 (Fed. Cir. 2008); Alvarado v. Defense Commissary Agency , 88 M.S.P.R. 46 , ¶¶ 4-5 (2001) (concluding that a 2 –month delay in filing an appeal was significant). Thus, we dismiss the appeal as untimely filed without good cause shown for the delay. NOTICE OF APPEAL RIG HTS8 You may obtain review of this final decision. 5 U.S. C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer th e 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 rega rding which cases fall within their jurisdiction. If you wish to seek review of this 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 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. 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 rev iew with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the cou rt’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information reg arding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judi cial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful disc rimination. If so, you may obtain 11 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link belo w: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination cla ims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 12 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingt on, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with th e U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court 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 “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	PIRKKALA_STEVEN_P_AT_0752_15_0454_M_1_FINAL_ORDER_1919405.pdf	2022-04-26	null	AT-0752	NP
4,449	https://www.mspb.gov/decisions/nonprecedential/FERRANTE_JOSEPH_PH_0752_15_0372_I_2_FINAL_ORDER_1918873.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOSEPH FERRANTE, Appellant, v. ENVIRONMENTAL PROTEC TION AGENCY, Agency. DOCKET NUMBER PH-0752 -15-0372 -I-2 DATE: April 25, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lawrence Berger , Esquire, Glen Cove, New York, for the appellant. Alexandra Meighan and Merrick D. Cosey , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The agency has filed a petition for review of the initial decision, whi ch reversed the appellant’s constructive suspension of more than 14 days . 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 signifi cantly 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 p rocedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Tit le 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED by this Final Order to clarify the improper agency action that rendered the appellant’s leave of absence invo luntary and to modify the constructive suspension period, we AFFIRM the initial decision. BACKGROUND ¶2 The appellant is employed as a Criminal Investigator, GS -1811 -13, with the agency in Edison, New Jersey. Ferrante v. Environmental Protection Agency , MSPB Docket No . PH -0752 -15-0372-I-2, Appeal File (I -2 AF), Tab 16, Refiled Initial Decision (RID) at 2. T he appellant is subject to medical examination whenever there is a question as to his continued ability to meet the medical standards or physical requirem ents of his law enforcement position. RID at 2; Ferrante v. Environmental Protection Agency , MSPB Docket No. PH -0752 -15- 0372 -I-1, Initial Appeal File (IAF), Tab 25 at 131-56. ¶3 On February 13, 201 5, the appellant suffered a non work -related head injury that resulted in a facial fracture and cognitive impairment and that required emergency surgery and physical therapy. RID at 2; IAF, Tab 25 at 11, 72, 85, 305. On February 17, 2015, the appellant informed his supervisor of his injury and began a period of vol untary sick leave. IAF, Tab 25 at 20. The agency 3 continued to approve his sick leave from February to April 2015, but requested that he provide sufficient documentation detailing, among other things, how his medical condition affected his ability to perf orm his duties. IAF, Tab 6 at 20, 22, Tab 25 at 20-22. The appellant provided additional medical documentation. IAF, Tab 25 at 20 -21, 25 -32, 54, 275 -84. The agency found it insufficient to make a determination as to his fitness for duty and on March 17, 2015, ordered him to submit to a Federal Occupational Health (FOH) medical exam ination . Id. at 22. Instead, on March 19, 2015, the appellant provided a note from his treating certified registered nurse prac titioner (CRNP) stating that he was unable to work “[d]ue to impaired delayed recall and fatigue” and indicated that he may not use a firearm, among other restrictions. Id. at 82, 85. But, on April 13, 2015, after receiving clearance from his CRNP, the appellant requested to return to partial duty o n April 15, 2015 . Id. at 32, 83. The agency declined his request and again ordered him to undergo a n FOH exam. Id. at 80, 82. ¶4 The appellant scheduled his FOH exam and reported for testing and examination on April 29 and May 12, 2015. RID at 3 . On May 28, 2015, the appellant’s CRNP cleared him for return to full duty. IAF, Tab 25 at 54. Nonetheless, a s indicated in her June 15, 2015 report, the FOH medical review officer (MRO) deferred making a final determination on the appellant’s clearance until he provided a report from a board -certified neurologist detailing 14 specific pieces of medical information , including the “Results of a CURRENT neurological and mental status evaluation .” IAF, Tab 25 at 11 -12, 14 -15, 74 -75. The appellant did not recei ve the FOH report until July 9, 2015. RID at 4; IAF, Tab 25 at 302 -03. On July 17, 2015, the appellant’s treating practitioners forwarded his extant clinical documentation because they believed it to be fully responsive to the FOH request. RID at 4; IAF, Ta b 25 at 286, 305. The FOH MRO, however, clarified that the records were only 1 of the 14 items needed and reissued the request for the remaining information. IAF, Tab 25 at 304-06. The appellant then scheduled an appointment with a board -certified neuro logist and 4 obtained the remaining documentation. RID at 4; IAF, Tab 25 at 213, 307-10. The appellant submitted this information to the agency on or about October 2, 2015; FOH cleared him for duty , effective October 14, 2015; the agency informed him of hi s clearance on Friday, October 16, 2015, and returned him to duty the following Monday, on October 19, 2015. RID at 4 -5. ¶5 While the appellant’s medical clearance decision was pending, he filed t his Board appeal, claiming that the agency’s refusal to return him to duty and placement on “ [e]nforced [l]eave” constituted a constructive suspension and disability discrimination. IAF, Tab 1 at 5, Tab 23 at 3 . The agency asserted that the appellant was not returned to duty because there was a legitimate, outstand ing question as to his fitness for duty. IAF, Tab 6 at 7 -10. The administrative judge initially dismissed the appeal without prejudice, but automatically refiled the appeal on February 3, 2016. I-2 AF , Tab s 1-2; IAF, Tab 27 , Initial Decision at 1-3. After holding the appellant’s requested hearing, the administrative j udge issued an initial decision finding that the agency constructively suspended the appellant from May 13, 2015, the day after his last FO H exam, to October 16, 2015, the last day of his a bsence before returning to duty; reversing the constructive suspension because it was effected without minimum due process; and finding unproven the appellant’s disability discrimination cl aim of failure to provide a reasonable accommodation . RID at 5, 13 , 16. ¶6 The agency has filed a petition for review . Petition for Review (PFR) File, Tabs 1-2. The appellant has filed a response, to which the agency has replied. PFR File, Tabs 4 -5. On petition for review, neither party challenges the administrative jud ge’s findings on the appellant’s failure to provide a reasonable accommodation claim . PFR File, Tabs 1-2, 4-5. Accordingly, we focus our discussion on the appellant’ s constructive suspension claim . 5 DISCUSSION OF ARGUME NTS ON REVIEW ¶7 Although various fact patterns may give rise to an appealable constructive suspension, all constructive suspension claims are premised on the proposition that an apparently voluntary absence actually is not. Rosario -Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶ 8 (2015), aff’d , 833 F.3d 1342 (2016). To demonstrate that the absence was not voluntary and is an actionable constructive su spension, an appellant must prove that he lacked a meaningful choice in the matter and that the agency’s wrongful actions deprived him of that choice. Id. Assuming the jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of these t wo things is sufficient to establish Board jurisdiction. Id. This analysis extends to situations when, as here, the agency prevents the appellant’ s return to work after an initial voluntary absence. Id. Our reviewing court has specifically held that th e jurisdictional analysis set forth above is appropriate in such cases. Rosario -Fabregas v. Merit Systems Protection Board , 833 F.3d 1342 , 1346 -48 (2016); Thomas v. Department of the Navy , 123 M.S.P.R. 628, ¶ 9 (2016) . ¶8 On petition for review, the agency does not dispute that the app ellant’s absence from April 15 until October 16, 2015, was involuntary. PFR File, Tab 1 at 7, Tab 4 at 10. Nevertheless, it argues that the administrative judge erred in finding that the appellant met his burden of proof as to the sec ond pro ng, i.e., that its wrongful actions deprived the appellant of a meaningful choice . PFR File, Tab 1 at 7. We find that the agency constructively suspended the appellant for the reasons set forth below. The agency was authorized to order the appellant to r eport for a FOH exam before returning him to duty. ¶9 Under 5 C.F.R. § 339.301 (b)(3) (2015 ), an agency has the authority to require an employee w ho occupies a position with physical and medical standards to report for a medical exam whenever there is a direct questio n about his 6 continued capacity to meet the physical or medical requirements of his position.2 Here, the administrative judge correctl y found that , while the agency must consider the appellant’s provided medical documentation, it need not rely on that information exclusive of an opinion from its own physician. RID at 6-8. ¶10 We further find that the agency’s exam order was appropriate beca use the appellant’s medical documentation did not sufficiently resolve the question of his fitness for duty. The appellant’s clearances from his treating practitioners did not explain how his medical condition affected his duties, or the reasons and bases for finding that his medical condition had improved since their recommendations that the appel lant be excused from his duties . IAF, Tab 25 at 26-32, 54, 85, 256-57; see Archerda v. Department of Defense , 121 M.S.P.R. 314, ¶¶ 19, 34-35 (2014) (finding that the agency was authorized to order the appellant to report fo r a fitness -for-duty exam because the provided medical documentat ion did not adequately explain his Post -Traumatic Stress Disorder ( PTSD ) medications, provide a history of his medical condition, include a prognosis or diagnosis, or indicate how his PTSD affected his ability to perform his Firefighter position duties ); Calicott v. U.S. Postal Service , EEOC Appeal No. 01A01169, 2003 WL 21634364, at 2 (Jul y 2, 2003) (finding that the agency had a sufficient basis for orderin g a fitness -for-duty exam when the employee’s medical documentation lacked relevant facts and inform ation regarding his current medical status). We therefore discern no error in the agency’s decision to order the appellant to 2 The Office of Personnel Management amended 5 C.F.R. part 339 , effective March 21, 2017, after the issuance o f the March 10, 2017 initial decision . RID at 1; 82 Fed. Reg. 10959 -01, 10959 (Feb. 17, 2017). For the purposes of this nonprecedential final order, we apply the 2015 version of the regulations in effect at the time of the appellant’s alleged constructiv e suspension. See Zajac v. Department of Agriculture , 112 M.S.P.R. 160, ¶ 5 n.2 (2009) . Nonetheless, we would reach the same outcome under either version because the amended regulat ions do not absolve the agency its obligation to designate an appropriate practitioner and to pay for exams that it orders. Compare 5 C.F.R. part 339 ( 2015) , with 5 C.F.R. part 339 (2017 ). 7 submit to a FOH exam, under 5 C.F.R. § 339.301 (b)(3) (2015 ), to determine his fitness for duty. The agency failed to fully discharge its obligations under 5 C.F.R. part 339 in effecting the ordered FOH examination. ¶11 The agency argues that, contrary to the administrative j udge’s findings, it acted appropriately and reasonably in requiring the appellant to submit acceptable medical documentation before permitting him to return to work , given the severity of his injury and the demanding nature of his position. PFR File, Tab 1 at 4, 7-14. While we agree with the administrative judge that the agency acted improperly when it ordered the appellant to obtain and provide a neurological evaluation after the agency had conducted the medical examination , we additionally find that the wrongful action included the agency’s requirement that the appellant pay for that evaluation . ¶12 The agency -ordered FO H exam did not include the neurological evaluation at issue . RID at 1 1-12; IAF, Tab 25 at 259 -64. However, early documentation from the ap pellant’s treating practitioners raised a question as to his cognition, which, among other things, affected his ability to operate a firearm. IAF, Tab 25 at 276-84. Thus, given the extent of the appellant’s head injuries and the nature of his position, t he FOH exam likely should have included that evaluation or referred him for further testing . I-2 AF , Tab 12 , Hearing Compact Disc (HCD) at 1:38:10 -1:38:45 (testimony of FOH MRO explaining that FOH medical examiner is responsible for conducting appropriate medical exams ); IAF, Tab 25 at 26 4 (exam notes from the FOH examining physician recognizing that the appellant had suffered head trauma, but declining to refer him for further testing ); Archerda , 121 M.S.P.R. 314, ¶ 21 ( stating that an exam ordered pursuant to 5 C.F.R. § 339.301 must be done in conformance with the Equal Employment Opportunity Commission Americans with Disabilities Act regulations , consistent with business necessity , and tailored to its specific c oncerns regarding the appellant’ s abili ty to perform). 8 ¶13 Recognizing the deficiency, the FOH MRO directed the appellant to submit a “CURRENT ” neurological and mental status evaluation by a board -certified neurologist . IAF, Tab 25 at 11, 305. The neurological evaluation was a required component of the clearance d etermination. Id. at 11-12, 74 -76, 305 -06. Rat her than merely provide already -obtained medical information describ ing his diagnosis or prognosis , the appellant was forced to undergo a new exam to fulfill the FOH directive . Id. at 307-10. Also, u nlike Rosario -Fabregas , 122 M.S.P.R. 468, ¶¶ 2-5, 13, wherein , in furtherance of the interactive process, the agency requested a dditional medical information from the appellant because the supporting information he offered was insufficient to make a determination on his reasonable accommodation request , the FOH MRO’s directive was in conjunction with an agency -ordered medical exam and evaluation to determine whether it would permit the appellant to resume his duties in a position with medical standards and physical requirements. We therefore find that , under these facts, the agency effectively ordered the appellant to undergo a med ical exam from a private board -certified neurologist.3 ¶14 Thus, we agree with the administrative judge that the agency did not comply with 5 C.F.R . § 339.303 (b), which required it to “designate[] the examining physician,” and that this wrongful action deprived the appellant of a meaning ful choice. RID at 12. Although the agency contends that it complied with the designation requirement by directi ng the appellant to “have a board -certified neurologist” complete a “CURRENT neurological and mental status evaluation,” PFR File, Tab 1 at 15; IAF, Tab 25 at 11, 305, we disagree. Section 339.303(b) does not indicate that an agenc y may “designate” an employee’s yet unidentified personal physician as the examining physician; 3 The agen cy argues that under 5 C.F.R. § 339.302 , it has the option of offering an exam under certain conditions. However, even if this is a circumsta nce in which the agency had the authority to offer (or refrain from offering) an exam under that provision, it nonetheless elected to utilize its authority under 5 C.F.R. § 339.301 (b)(3) (2015 ) to order a medical exam. 9 rather, it provides that the agency must merely “offer” the employee an opportunity to submit medical documentation from the personal physician. ¶15 Moreover, w hen an agency orders or offe rs a medical exam, the agency shall pay for the exam. 5 C.F.R. § 339.304 (2015 ). The evidence in the record does not reflect that the agency made any effort to pay for the new neurological exam.4 Consequently , we find that the agency also did not comply with the requireme nts set forth in 5 C.F.R. § 339. 304 (2015 ), and that wrongful action , along with its failure to comply with 5 C.F.R. § 339.303 (2015), deprived the appellant of a meaningful choice . ¶16 As a result, the delay in medically clearing the appellant was attributable to the agency’s failure to conduct a sufficient exam and to comply with its obligations under 5 C.F.R. part 339 in ordering and paying for a neurolog ical exam, and not due to the appellant’s delay in providing the neurological report. Cf. 5 C.F.R. § 339.102 (c) (2015 ) (explaining that “[a]n employee’s refusal to be examined in accordance with a proper agency order authorized under [5 C.F.R. part 339 ] is grounds for appropriate disciplinary or adverse action ”) (emphasis added). We therefore find that the appellant proved that the agency cons tructiv ely suspended him from June 15, 2015, when the FOH MRO completed her report, to October 16, 2015, the appellant’s last day of absence before returning to duty, and that the Board has jurisdiction, under 5 U.S.C. § 7512 (2), over that constructive suspension. 4 Moreover, on review, the app ellant’s representative asserts under penalty of perjury that the agency required the appellant to obtain the neurological evaluation “at his own cost and expense.” PFR File, Tab 4 at 3, 12. We consider this new evidence because it impli cates the Board’s jurisdiction . See Lovoy v. Department of Health & Human Services , 94 M.S.P.R. 571, ¶ 30 (2003) (considering new arguments raised on review because the issue of jurisdiction can be raised at any time). Also , the agency does not dispute this evidence. PFR File, Tab s 1, 5; see Woodall v. Federal Energy Regulatory Commission , 30 M.S.P.R. 271, 273 (1986) (finding that a declaration subscribed as true under pe nalty of perjury, if uncontested, proves the facts it asserts). 10 The administrative judge erred in including the appellant’s involuntary absence before June 15, 2015, in the constructive suspension period. ¶17 The agency argues that the administrative judg e erred in finding that the delay between the appellant’s last FOH appointment on May 13, 2015, and the appellant’s receipt of the June 15, 2015 MRO report on J uly 9, 2015, was unreasonable. We agree with the agency in part and modify the administrative judge’s finding as to when the constructive suspension period began . ¶18 The administrative judge relied on Sherrod v. Department of the Navy , 90 M.S.P.R. 347, ¶ 24 (2001), in finding that the delay was unreasonably long. RID at 11-12. We find Sherrod distinguishable from the instant case. There, the agency failed to provide any explanation for its nearly 3 -month delay between receiving the appellant’s request to return to duty and medical information from his private physician and issuing its request for more information. Sherrod , 90 M.S.P.R. 347, ¶ 24. Here, in contrast, the agency submitted evidence explaining the medical review process and the FOH MRO’s actions taken to complete her review, which included reviewing medical documentation from the appellant’s priv ate practitioners and the FOH exam information. HCD at 1:37 -1:39:20, 1:48:25 -1:48:40 (testimony of FOH MRO); IAF, Tab 25 at 11-12, 74-75. ¶19 We also find the remaining cases relied on by the administrative judge on this issue inapposite. In Caballero v. U.S. Postal Service , 34 M.S.P.R. 263, 266-67 (1987), the Board did not base its finding on the appellant’s constructive suspension clai m on the length of the agency ’s delay in rendering a fitness -for-duty determination. In Baker v. U.S. Postal Service , 84 M.S.P.R. 1 19, ¶¶ 10, 13 (1999), the Board found that the agency constructively suspended the appellant because it failed to comply with its obligations to search for a light -duty assignment within the appellant’s restriction s and within the 72 -hour time frame manda ted by the collective bargaining agreement . There is no similar provision requiring the agency to return the appellant to work within a specific timeframe in 11 this case; thus, the Board’s unreasonably long delay finding in Baker is not applicable . Finally , the administrative judge relied upon Justice v. Department of the Navy , 89 M.S.P.R. 379 , ¶ 13 (2001), in finding that, although a “ brief delay” between a medical examination and a medical clearance determination would not be improper, the Board declines to speculate in these types of cases as to how long a reasonable delay might last. RID at 12 n.10. Justice , however, was issued before the Board deci ded in Bean v. U.S. Postal Service , 120 M.S.P.R. 397 (2013) , that a finding of wrongful agency action is requi red for an involuntary absence to constitute a constructive suspension , and therefore, merely held that the appellant’s constructive suspension began on the day the agency refused to allow him to return to work when he reported for duty that day. See Just ice, 89 M.S.P.R. 379 , ¶ 13. ¶20 The FOH MRO completed her review of the ap pellant’s medical information 1 month after his last FOH exam. RID at 3; IAF, Tab 25 at 12. We find that t his is not an unreasonably long time to conduct such a review and that such a delay does not constitute a wrongful action sufficient to trigger a constructive suspension . See Campbell v. U.S. Postal Service , 94 M.S.P.R. 646, ¶¶ 20-21 (2003) (finding no wrongdoing in the agency’s nearly 1 -month delay between receiving the appellant’s cle arance from his private physician and issuing its request for medical documentation) . Therefore , the appellant has not shown any wrongdoing in the agency’s actions from April 15 to June 14, 2015. Accordingly, we find that the appellant was constructively suspended only from June 15, 2015, when the FOH MRO deferred a medical determination pending further documentation, including a neurological and mental status evaluation, until October 16, 2015 , the last day of the appellant’s absence until his return to duty . 12 The agency constructively suspended the appellant from June 15 to October 16, 2015, without due process. ¶21 As explained by the administrative judge, RID at 13, minimum due process for depriving a tenured public employee of his property right in his emp loyment entails prior notice and an opportunity to respond. Cleveland Board of Education v. Loudermill , 470 U.S. 532 , 546 (1985). An adverse act ion taken without due process must be reversed. Stephen v. Department of the Air Force , 47 M.S.P.R. 672 , 681 (1991). Here, the appellan t’s construc tive suspension of more than 14 days must be reversed because the agency failed to provide him with any process before taking that adverse action. See Mc Lain v. U.S. Postal Service , 82 M.S.P.R. 526 , ¶ 10 (1999) (reversing the appellant’s constructive suspension of more than 14 days because it was effected without the procedural protections of 5 U.S.C. § 7513 (b), in violation of his constitutional right to minimum due process). ¶22 Accordingly, we find that the agency violated the appellant’s constitutional rights by constructively suspending him from June 15 to Octo ber 16, 2015, without minimum due process. We therefore affirm the initial decision’s reversal of the appellant’s constructive suspension, as modified.5 ORDER ¶23 We ORDER the agency to cancel the appellant’ s constructive suspension from Jun e 15 to October 16 , 2015 . 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 a fter the date of this decision. 5 The agency also asserted its belief that the administrative judge did not order interim relief. PFR File, Tab 2 at 4 -5. As argued , the administrative judge was correct in declining to orde r interim relief. See Zygas v. U.S. Postal Service , 116 M.S.P.R. 397 , ¶ 14 (2011) (finding an interim relief award inappropriate in co nstructive suspension cases when at the time the initial decision is issued, the agency has returned the appellant to paid duty status at the same grade and step occupied prior to his absence). 13 ¶24 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days af ter the date of this decision. ¶25 We further ORDER the agency to compensa te the appellant for the cost of the neurological examination and evaluation from his private physician that he obtained on or about October 2, 2015. ¶26 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carrie d 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. § 1201.18 1(b). ¶27 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). ¶28 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the 14 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 C OSTS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations ma y be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF TH E 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 HTS6 The initial decision, as supplemented by this Final Order, constitutes the Board’s fin al decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Meri t Systems Protection Board does not provide legal advice on which option is most appropriate for your situation an d the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file 6 Since the issuance of the initial decision in this matter, t he Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 15 within the applicable time limit m ay result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is th e appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information ab out the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice , and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono repres entation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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, yo u may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or o ther security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you sub mit 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 comm ercial delivery or by a method requiring a signature, it must be 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 Whistlebl ower Protection Enhancement Act of 2012 . This option applies 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 disposition of allegations of a prohibited personnel practice desc ribed in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 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. 18 If you sub mit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within th e court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informatio n regarding pro bono representation for Merit Systems Protection Board appellants before the 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/CourtWebsite s.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operati ons DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan .org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the 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 agreem ent, 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 C ivilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment ear ning 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 leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the inform ation/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/Act ion Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personn el Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Su m 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 t o 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 clarificati on on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	FERRANTE_JOSEPH_PH_0752_15_0372_I_2_FINAL_ORDER_1918873.pdf	2022-04-25	null	PH-0752	NP
4,450	https://www.mspb.gov/decisions/nonprecedential/LONDON_CHARISSE_AT_315H_21_0601_I_1_REMAND_ORDER_1918538.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CHARISSE LONDON, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER AT-315H -21-0601 -I-1 DATE: April 22, 2022 THIS ORDER IS NONPRECEDENTIAL1 Charisse London , Atlanta, Georgia, pro se. Andrew Hass , Washington, D.C., for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her probationary termination appeal for lack of jurisdiction . For the reasons discussed below, we GRANT the appellant’s petition for review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 VACATE the initial decision , and REMAND the case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. BACKG ROUND ¶2 In September 2020, the agency appointed the appellant, a preference eligible, to a competitive -service position as a GS -9 Administrative Specialist. Initial Appeal File (IAF), Tab 8 at 21. The agency terminated her in August 2021, prior to the completion of her probationary period, because of unsatisfactory performance. IAF, Tab 3 at 7-10. The termination notice advised the appellant of her options for obtaining review of the agency’s decision, including her option to see k corrective action fr om the Office of Special Counsel (OSC) and to obtain limited review from the Board. Id. at 10 -11. Nothing in the record suggests the appellant sought corrective action from OSC , and her appeal form does not indicate whether she filed a whistleblowing com plaint with OSC . IAF, Tab 1 at 1 -3. The Standard Form 50 documenting her appointment shows that she had 1 year and 2 months of creditable military service from 1989 -1990. IAF, Tab 3 at 21, Tab 8 at 21. ¶3 The appellant filed this appeal , in which she app eared to allege that the agency wrongfully terminated her in retaliation for speaking with Human Resources staff, her second -line supervisor, and another agency official . IAF, Tab 3 at 44. According to the appellant, the conversations concerned her Unacc eptable rating on her 2020 Performance Appraisal and lack of mentorship and support, as well as her request for a reasonable accommodation for her service -connected disability. Id. at 20, 39, 44, 49-52, 64, 74-75, 94. The administrative judge notified th e appellant of her burden of proof to establish Board jurisdiction over her appeal as an “employee” under chapter 75 or pursuant to Office of Personnel Management (OPM) regulations regarding probationary appointees. IAF, Tab 2 at 1 -2, Tab 4 at 1 -5. In re sponse, the appellant stated that her Federal service computation date with “military [service] combined” was 3 June 20, 2019, and resubmitted her appeal form with additional documents relating to the merits of her termination. IAF, Tab 3 at 26, Tab 8 at 21. ¶4 Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 1 at 2, Tab 9, Initial Decision (ID) at 1, 6. The administrative judge reasoned that the app ellant failed to nonfrivolously allege any statutory or regulatory basis for Board jurisdiction over her p robationary termination. ID at 3-6. ¶5 The appellant has filed a petition for review of the initial decision, and the agency responded in opposition. Petition for Re view (PFR) File, Tabs 1, 3. In her petition for review, the appellant disputes the merits of her termination by resubmitting a copy of a narrative statement appearing in the record bel ow. PFR File, Tab 1 at 4 -33; IAF, Tab 3 at 5-6, 18 -20, 26-28, 36 -39, 43 -44, 49 -54, 57-61, 74 -76, 88 -89. She reiterates that she had over 2 years of Federal service because of her military service but does not make any new statements or address the Board’s jurisdiction on review. PFR File, Tab 1 at 9. DISCUS SION OF ARGUMENTS ON REVIEW The administrative judge properly found that the Board lacks jurisdiction under chapter 75 and OPM regulations over the appellant’s probationary termination . ¶6 Generally, in order to qualify for chapter 75 appeal rights, a probationary employee in the competitive service must have completed 1 year of current continuous service under other than a temporary appointment limited to 1 year or less. 5 U.S.C. § 7511 (a)(1)(A); McCormick v. Department of the Air Force , 307 F.3d 1339 , 1340 -43 (Fed. Cir. 20 02). Pursuant to 5 C.F.R. § 752.402 , “current continuous service” does not include military service. Wilder v. Merit Systems Protection Board , 675 F.3d 1319 , 1322 -23 (Fed. Cir. 2012). A probationary employee in the competitive service who does not have a statutory right of appeal may nonetheless have a regulatory right of appe al to the Board if she makes a nonfrivolous allegation that the agency terminated her because of 4 discrimination based on marital status or for partisan political reasons, or because of conditions arising before appointment to the position in question. Harris v. Department of the Navy , 99 M.S.P.R. 355 , ¶ 6 (2005); 5 C.F.R. §§ 315.805 -.806. The Board may consider a probationary appointee’s claim of discrimination based on disability only if the discrimination is raised in addition to one of these issues. 5 C.F.R. § 315.806 (d). ¶7 The administrative judge correctly found that the appellant has failed to show that she was an “employee” with a statutory right to appeal her termination because she was serving a probationary period and had less than 1 year of curren t continuous service. ID at 3 -5. The appellant did not claim below, and has not raised on review, that she had any prior Federal civilian service. IAF, Tabs 1, 3; PFR File, Tab 1. We note that the appellant had over 1 year of prior milita ry service. IAF, Tab 3 at 21. Such military service, however, may not be tacked onto her current service to bring her appeal within the Board’s jurisdiction. Wilder , 675 F.3d at 1322 -23. Even if it could, the appellant’s military service occurred 30 ye ars before her entry into Federal civilian service and is too remote in time to be tacked for service computation purposes. IAF, Tab 3 at 21; see Claiborne v. Department of Veterans Affairs , 118 M.S.P.R. 491 , ¶ 6 (2012) (explaining that prior service may only be tacked onto a competitive service probationary appointment to meet the 1 -year “current continuous service” requirement w hen the break between the two periods was less than a workday). ¶8 The administrative judge also correctly found that the appellant did not have a right to appeal her probationary termination to the Board under OPM regulations because she did not allege tha t her termination was based on conditions arising before her appointment , was the result of marital status discrimination, or was for partisan political reasons. ID at 5; 5 C.F.R. § 315. 806(a)-(c). The parties have not disputed this finding on review , and we discern no reason to disturb it . 5 We remand for further proceedings because the appellant did not receive explicit notice of what is required to establish Board jurisdiction based on her allegations. ¶9 We find that the instant appeal needs to be remanded for further proceedings under 5 U.S.C. § 7701 , because it appears that the appellant may be attempting to raise an individual r ight of action (IRA) appeal under the Whistleblower Protection Enhancement Act of 2012 or a discrimination claim under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301 -4335) (USERRA) .2 ¶10 An appellant must receive explicit information on what is required to establish Board jurisdiction. Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985); Burwell v. Department of the Army , 78 M.S.P.R. 645 , ¶¶ 8-9 (1998) (remanding an appeal due to the administrative judge ’s failure to advise the appellant what was required to establish Board jurisdiction over an IRA appeal) . The administrative judge ’s o rders , initial decision, and agency’s submissions did not provide the appellant with notice on the jurisdictional requirements of an IRA appeal. IAF, Tabs 2, 4, 8 -9; ID at 1-6; see Harris v. U.S. Postal Service , 112 M.S.P.R. 1 86, ¶ 9 (2009) (stating that an administrative judge’s failure to provide an appellant with proper Burgess notice can be c ured if the agency’s pleadings or the initial decision contain the notice that was otherwise lacking). Although her appeal form does not indicate whether she filed a whistleblowing complaint with OSC, the appellant alleged that the agency retaliated again st her after she spoke with Human Resources staff, her second -line supervisor , and another agency official concerning , among other issues, her concerns about a lack of mentoring and her Unacceptable performance appraisal . IAF, Tab 1, Tab 3 at 44, 49 -52, 6 4, 74 -75. 2 The Board ’s jurisdiction over a USERRA claim is not dependent on an appellant invok ing USERRA. Yates v. Merit Systems Protection Board , 145 F.3d 1480 , 1485 (Fed. Cir. 1998). USERRA claims are broadly and liberally construed . Tindall v. Department of the Army , 84 M.S.P.R. 230 , ¶¶ 6 -7 (1999 ). 6 ¶11 The appellant needs to be advised that to establish Board jurisdiction over an IRA appeal, she must show that she exhausted her administrative remedies before OSC and make nonfrivolous allegations of the following: (1) she made a protected dis closure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity as specified in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or ( D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a)(2)(A). 5 U.S.C. §§ 1214 (a)(3), 1221 (a), (e)(1) ; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). Because the appellant was not so informed, it is necessary to remand this appeal to the regional office to provide her with an adequate opportunity to establish jurisdiction. Burwell , 78 M.S.P.R. 645, ¶ 9. ¶12 Regarding her possible USERRA claim, the appellant stated that she is a disabled veteran with a 30 percent service -connected disability and that th e agency discriminated against her due to her serv ice-connected disability. IAF, Tab 3 at 20 -21, 26. If the fact that the appellant incurred the injury during military service is incidental to her claim of disability discrimination , then it does not, on its own , make her claim a USERRA claim. McBride v. U.S. Postal Service , 78 M.S.P.R. 411 , 415 (1998) . Conversely, if the appellant is alleging the agency’s actions, culminating in and including her termination, were motivated by her status as a disabled veteran, the Board may have jurisdiction over her claim. Lazard v. U.S. Postal Service , 93 M.S.P.R. 337 , ¶ 8 (2003). N either the administrative judge nor the agency’s submissions provided the appellant with notice on the jurisdictional requirements of a USERRA claim. IAF, Tabs 2, 4, 8-9. ¶13 Therefore, the appellant also needs to be advised that to establish Board jurisdiction over a USERRA discrimination claim under 38 U.S.C. § 4311 (a), she must nonfrivolously allege that: (1) she performed duty or has an obligation to perform duty in a uniformed service of the United States; (2) the agency denied 7 her initial employment, reemployment, retention, promotion, or any benefit of empl oyment; and (3) the performance of duty or obligation to perform duty in the uniformed service was a substantial or motivating factor in the denial. Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 11 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board , 878 F.3d 1320 (Fed. Cir. 2017) ; see Bryant , 878 F.3d at 1325 -26 (articulating the “substantial or motivating fac tor” standard) (citation omitted) . ORDER ¶14 For the reasons discussed above, we remand this case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. The administrative judge may adopt his prior findings regarding the Board’s lack of jurisdiction over the appellant’s termination under chapter 75 and 5 C.F.R. §§ 315.805 -.806 in his re mand initial decision. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LONDON_CHARISSE_AT_315H_21_0601_I_1_REMAND_ORDER_1918538.pdf	2022-04-22	null	AT-315H	NP
4,451	https://www.mspb.gov/decisions/nonprecedential/MCLEAN_MAGAN_DC_315H_16_0900_I_1_FINAL_ORDER_1918118.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MAGAN MCLEAN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DC-315H -16-0900 -I-1 DATE: April 21, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Magan McLean , Asheville, North Carolina, pro se. Monique Smart , Winston -Salem, North Carolina, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petiti on for review of the initial decision, which dismissed her termination appeal for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not availabl e when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the p etitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, except as expressly MODIFIED to clarify that the appellant held an excepted -service position at the time of her termination and to apply the statutory provisions applicable to individuals in the excepted service in finding that the Board lacks jurisdiction over this appeal. BACKGROUND ¶2 The record reflects that, effective October 4, 2015, the agency appointed the appellant, a preference eligible, to an excepted -service position as a GS -6 Advanced Medical Support Assistant under the authority of 38 U.S.C. § 7401 (3). Initial Appeal File (IAF), Tab 7 at 19 -20. The Standard Form 50 (SF -50) documenting her appointment indicated that she was appointed to a competitive -service position and that her appointment was subject to completion of a 1 -year trial period . Id. at 20. The ag ency subsequently issued a corrected SF-50 reflect ing that the position was in the excepted service. Id. at 19. ¶3 Prior to the end of her 1 -year trial period, the agency informed the appellant that she would be terminated from her excepted -service positio n effective September 16, 2016, due to her inability to meet performance expectations. Id. at 14. The SF -50 documenting her termination indicates that she was terminated from a competitive -service position pursuant to 5 C.F.R. § 315.804 , which 3 pertains to the termination of probationers in the competitive service for inadequate performance or conduct. Id. at 13. She appealed her termination to the Board. IAF, Tab 2. ¶4 In an order on j urisdiction, t he administrative judge notified the a ppellant of the applicable law and her burden of proof to establish the Board’s jurisdiction over her appeal as a probationary employee in the competitive service. IAF, Tab 5. The appellant did not resp ond to the order on jurisdiction. Without holding the requested he aring, the administrative judge issued an initial decision finding that it was undisputed that the appellant had less than 1 year of service at the time of her termination and, therefore, d id not meet the statutory definition of an “employee” with adverse action appeal rights under 5 U.S.C. § 7511 (a)(1)(A). IAF, Tab 11, Initial Decision (ID) at 3. The administrative judge further f ound that the appellant did not have a regulatory right of appeal under 5 C.F.R. § 315.806 (b) because she had not alleged that her termination was based on partisan political or marital status discrimination. ID at 3 -4. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction. ID at 4. ¶5 The appellant has filed a peti tion for review of the initial decision, and the agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.2 2 On May 4, 2017, the Board issued a show cause order informing the parties that the record contained conflicting information about whether the appellant held a competitive - or excepted -service position and ordering the agency to clarify the nature of the appellant’s appointment. PFR File, Tab 4 at 1-2, 4. The Board’s order also notified the appellant that her position appeare d to be in the excepted service , set forth the applicable law and burden of proof to establish Board jurisdiction over her termination a s an excepted -service appointee , and afforded her an opportunity to respond. Id. at 3-4. Neither party responded to the show cause order. Approximately 4 months past the filing deadline and without any explanation for the delay, however, the agency submitted a response to the order indicating that the appellant was an excepted -service appointee. PFR File, Tab 5. We have reviewed the untimely response and find that it does not change the outcome of this appeal. 4 ANALYSIS We modify the initial decision to clarify that the appellant held an excepted -service appointment. ¶6 As noted above, the SF -50 documenting the appellant’s appointment and the termination letter reflect that she held an excepted -service position, and the SF-50 documenting her termination reflects that she held a competitive -service position. IAF, Tab 7 at 13, 19. While an SF-50 is relevant evidence regarding an employee’s status, it is not dispositive. See Scott v. Department of the Air Force , 113 M.S.P.R. 434 , ¶ 8 (2010) (finding that an SF -50 is not a legally operative document that controls an employee ’s status and rights but is merely the customary documentation for a Federal personnel action ). Here, we find that the appellant, who was appointed to an Advanced Medical Support Assistant position under the authority of 38 U.S.C. § 7401 (3), held an excepted -service position because appointments in the Veterans Health Administration under 38 U.S.C. § 7401 are in the excepted service. See Graves v. Department of Veterans Affairs , 114 M.S.P.R. 245 , ¶ 11 (2010); see also Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210 , ¶ 9 (2009) (explaining that individuals appointed under 38 U.S.C. § 7401 (3) are not excluded from filing appeals under chapter 75 of title 5) ; PFR File, Tab 5 at 4. Therefore, we modify the init ial decision to clarify that the appellant was terminated from an excepted -service position. The administrative judge correctly determined that the Board lacks jurisdiction over the appellant’s termination appeal , but we modify the initial decision to clarify the basis for this finding. ¶7 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). Under 5 U.S.C. chapter 75, subchapter II, an individual who meets the definition of “employee” at 5 U.S.C. § 7511 (a)(1) generally has the right to challenge her removal from Federal service 5 by filing an appeal with the Board. Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234 , ¶ 9 (2011). ¶8 In the instant matter , the administrative judge found that the appellant did not meet the definition of an “employee” with appeal rights under 5 U.S.C. § 7511 (a)(1)(A) , which pertains to individuals in the competitive service. ID at 3. As discussed above, however, t he appellant was serving in an excepted -service position, rather than a competitive -service position, at the time of her termination. In addition, the record reflects that the appellant is a preference eligible. IAF, Tab 7 at 13, 20. Therefore, the applicable statutory provision is 5 U.S.C. § 7511 (a)(1)(B), and we modify the initial decision consistent with the following analysis. ¶9 To be considered an “employee” for the purposes of B oard jurisdiction, a preference -eligible individual in the excepted service must have completed 1 year of current continuous service in the same or similar positions.3 5 U.S.C. § 7511 (a)(1)(B); see Maibaum , 116 M.S.P.R. 234 , ¶ 9. Here , the agency appointed the appellant to her excepted -service position on October 4, 2015, and terminated her appointment before the completion of her first year of service, effective September 16, 2016 . IAF, Tab 7 at 13, 19 . The appellant has not alleged that she had more than 1 year of service in her position or that there was 3 An appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643 -44 (Fed. Cir. 1985). As noted above, the administrative judge notified the appellant of the requirements for proving jurisdiction over an appeal by an individual i n the competitive service under 5 U.S.C. § 7511 (a)(1)(A). IAF, Tab 5. However, because the appellant was appointed to an excepted -service position and was a preference eligible, the Board’s juris diction over her appeal is governed by 5 U.S.C. § 7511 (a)(1)(B) . Although the administrative judge did not provide the appellant with the correct jurisdictional notice, the Board provided the correct information in a show cause order on review and afforded the appellant an opportunity to respond. PFR File, Tab 4. T herefore, the appellant was not prejudiced by this error. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive rights provides no basis for reversal of an initial decision). 6 any other service that could be counted towards completion of 1 year of current continu ous service in a similar position . IAF, Tab s 2, 9; PFR File, Tab 1 . Therefore, we find that the appellant is not an “employee” with a statutory right to appe al her termination to the Board under 5 U.S.C. § 7511 (a)(1)(B). ¶10 As noted above, the administrative judge further found that the appellant did not have a regulatory right of appeal under 5 C.F.R. § 315.806 because she had not alleged that her termination was based on partisan political reason s or marital status discrimination. ID at 4. The Board has found , however, that an individual appointed in the excepted service has no regulatory right to appeal under 5 C.F.R. § 315.806 because it applies only to individuals in the c ompetitive service. Barrand , 112 M.S.P.R. 210 , ¶ 13. Accordingly, we modify the initial decision to find that 5 C.F.R. § 315.806 (b) does not apply to the appellant and that she cannot establish juris diction by proving that her termination was based on partisan political reasons or marital status. ¶11 On review, the appellant argues that the agency failed to give her advanced notice of the separation pursuant to 5 C.F.R. § 315.805 and failed to follow the requirements of the collective bargaining agreement in implementing her termination. PFR File, Tab 1 at 3-6. These arguments , however, provide no basis to find Board jurisdiction over this appeal . Like 5 C.F.R. § 315.806 , section 315.805 applies only to individuals in the competitive service. See Barrand , 112 M.S.P.R. 210 , ¶ 13. In addition , the appellant’ s Board appeal rights are determined by the nature of her appointment —not by con tract. Id., ¶ 11. Therefore, alleged violations of the collective bargaining agreement are irrelevant to the jurisdictional issue. See id. 7 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 statu te, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of availa ble appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may res ult in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the approp riate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be 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 right s 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 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 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 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 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.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 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	MCLEAN_MAGAN_DC_315H_16_0900_I_1_FINAL_ORDER_1918118.pdf	2022-04-21	null	DC-315H	NP
4,452	https://www.mspb.gov/decisions/nonprecedential/RENFROW_NAHUM_R_PH_315H_16_0381_I_1_FINAL_ORDER_1918219.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD NAHUM R. RENFROW, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER PH-315H -16-0381 -I-1 DATE: April 21, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Nahum R. Renfrow , Newport, Rhode Island, pro se. Andrew M. Wallace , Newport, Rhode Island, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for re view of the initial decision, which dismissed his termination appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the init ial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 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 consi stent 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 th e record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we c onclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The facts material to the dispositive jurisdictional issue are undisputed. The appellant received a career -conditional appointment to the competitive -service position of Transport ation Assistant , subject t o the completion of a 1 -year probationary period beginning on September 8, 2015. Initial Appeal File (IAF), Tab 5 at 13 . Effective December 13, 2015, he received a management -directed reassignment to an Administrative Support As sistant position in the competitive service. IAF, Tab 7 at 5. On June 17, 2016, the agency terminated the appellant from service for inattention to duties and failing to demonstrate an acceptable level of performance . IAF, Tab 5 at 9 -12. The terminatio n noti ce informed the appellant of his limited Boa rd appeal rights, based upon his status as a probationary employee . Id. at 11 -12. ¶3 The appellant filed the instant appeal, challenging his termination , and he requested a hearing . IAF, Tab 1 at 1, 3 . The administrative judge explained the Board’s limited jurisdiction and directed the appellant to meet his jurisdictional burden of proof. IAF, Tab 2 at 2 -5. The agency responded by filing a motion to dismiss, arguing that th e appeal was outside the Board’s purview because the appellant was terminated during his probationary period, he had no prior creditable Federal civilian service, and he was not an employee with Board appeal 3 rights under 5 U.S.C. chapter 75. IAF , Tab 5 at 5 -6. The agency also argued th at the appeal should be dismissed for lack of jurisdiction because the appellant did not allege one of the limited regulatory grounds for appeal un der 5 C.F.R., part 315, subpart H; specifica lly, he did not allege that the agency discriminated against him based on his marital status or partisan political affiliation, or that he was terminated for pre appointment reasons without the required procedures. Id. The appellant did not respond to either the administrative judge’s order or the agency’s motion to di smiss. IAF, Tab 6, Initial Decision (ID) at 3. ¶4 Without holding a hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. ID at 1. In dismissing the appeal, the administrative judge found it undisp uted that the appellant was hired to serve in a competitive -service position, subject to a 1 -year probationary period, effective September 8, 2015. ID at 3. The administrative judge also found it undisputed that the appellant received a management -direct ed reassignment to an Administrative Support Assistant position on December 13, 2015, that he was still required to complete his probationary period in his new position, and that he was termin ated on June 17, 2016, for post appointment reasons before comple ting his probationary period. ID at 3 -4. ¶5 The administrative judge found that the appellant did not argue or allege any facts that meet the definition of an “employee” under chapter 75 with the right to appeal his termination to the Board as an adverse a ction. Id. The administrative judge also found that the appellant did not have a regulatory right of appeal under 5 C.F.R. § 315.806 , because he did not allege that h is termination was based on pre appointment reasons or that the agency discriminated against him based on his marital status or for partisan political reasons. ID at 4; see 5 C.F.R. §§ 315.805 -06. Based on the foregoing, the administrative judge found that the appellant failed to establish jurisdict ion over his appeal. ID at 4. The appellant has filed a petition for review of the initial decision dismissing his 4 appeal for lack of jurisdiction, and the age ncy has responded in opposition to his petition. Petition for Review (PFR) File, Tabs 1, 3. ¶6 The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Boa rd, 759 F.2d 9 , 10 (Fed. Cir. 1985). The appellant bears the burden of proving Board jurisdiction by pr eponderant evidence. 5 C.F.R. § 1201.56 (b)(2)(i)(A). An appellant is entitled to a juris dictional hearing only if he makes a nonfrivolous a llegation of Board jurisdiction. Francis v. Department of the Air Force , 120 M.S.P.R. 138 , ¶ 14 (2013). A nonfrivolous allegation of Board jurisdiction is an allegation of fact that, if proven, could e stablish that the Board has jurisdi ction over the matter at issue. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325 , 329 (1994); 5 C.F.R. § 1201.4 (s). For the following reasons, we find that the appellant has fail ed to nonfrivolously allege any facts that, if proven, could establish that the Board has jurisdiction over his termination appeal . ¶7 It is undisputed that, as a probationary employee in the competitive service with less than 1 year of current continuous service, the appellant has no statutory right of appeal to the Board under 5 U.S.C. chapter 75 .2 ID at 3 -4; see 5 U.S.C. § 7511 (a)(1)(A);3 Harris v. Department of the Navy , 99 M.S.P.R. 355 , ¶ 6 (2005). 2 Under 5 C.F.R. § 315.801 (b)(2), a person who is promoted, demoted, or reassigned before he completed probation is required to “c omplete the probationary period in the new position.” The Board observed in Aizin v. Department of Defense , 52 M.S.P.R. 146, 148 -49 (1991), that if the appellant was promoted during his probationary period, “he could finish serving the initial probationary period in the new position.” Here, regardless of the appellant’s probationary period start time, whether at his initial appointment or rea ssignment to a new position, he did not complete his probationary period. 3 After the appellant’s appointment to the position of Transportation Assistant, but before his management -directed reassignment , IAF, Tab 5 at 13 , Tab 7 at 5, Congress enacted the National Defense Authorization Act for Fiscal Year 2016 (2016 NDAA) on November 25, 2015 , Pub. L. No. 114 -92, 129 Stat. 726. T he 2016 NDAA extended the probationary period for an individual appointed to a permanent competitive -service position at the Depar tment of Defense to a 2 -year probationary period and provided that 5 Moreover, the appellant does not allege that his termination was based upon either partisan political reasons or marital status, which would give rise to a regulatory r ight of appeal under 5 C.F.R. § 315.806 (b). ID at 3 -4. Instead, on review, the appellant argues the merits of his appeal and he submits letters from individuals attesting to his dedication, professionalism, and customer service. PFR File, Tab 1 at 1 -6, 27 -28. The appellant also submits additional documents with his petition, including but not limited to a copy of the initial decision and some of the documents submitted by the agency on appeal, but he does not explain how any of this evidence relates to the dispositive jurisdictional issue before the Board on review, and we find that these documents are immaterial to the jurisdictional issue. Id. at 1-7, 15 -26, 28 -34. ¶8 Because we find that the appellant ha s failed to make a nonfrivolous allegation of jurisdiction over his appeal , we will not address the arguments that he made on review concerning the merits of his termination.4 PFR File, Tab 1 at 1-2; see Schmittling v. Department of the Army , 219 F.3d 1332 , 1337 (Fed. Cir. 2000) (recognizing that a decision on the merits would be a nullity in the absence of Board jurisdiction). We therefore deny the petition for review of the such individual only qualifies as an “employee” under 5 U.S.C. § 7511 (a)(1)(A)(ii) if he has completed 2 years of current continuo us service . Pub. L. No. 114 -92, section 1105, 129 Stat. at 1023 -24 (codified as relevant here at 10 U.S.C. § 1599e and 5 U.S.C. § 7511 (a)(1)(A)(ii)); see Bryant v. Department of the Army , 2022 MSPB 1, ¶¶ 8-10 (2022) (finding that the appellant, who was appointed to a competitive -service position at the Department of the Army after the enactment of the 2016 NDAA, was subject to a 2-year probationary period). We need not consider which version of 5 U.S.C. § 7511 (a)(1)(A) (ii) applies because the outcome would be the same under either. 4 To the extent that the administrative judge may have made inappropriate “findings” under Ferdon , we find no prejudicial error b ased on our determination that the appellant has not made a nonfrivolous allegation of jurisdiction. See Ferdon , 60 M.S.P.R. at 329; 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). 6 administrative judge’s initial decision dismissing this appeal for lack of jurisdiction.5 NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S. C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following 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. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 5 Because we find that the administrative j udge properly dismissed this appeal for lack of jurisdiction, we find it unnecessary to adjudicate the timeliness issue that the agency raised in opposition to the appellant’s petition for review. PFR File, Tab 3 at 1. 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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 8 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at 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 9 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in 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 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 7 The original statutory provision tha t provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to f ile petitions for judicial review of MSPB decisions in certain whistleblower 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 t o November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites , which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	RENFROW_NAHUM_R_PH_315H_16_0381_I_1_FINAL_ORDER_1918219.pdf	2022-04-21	null	PH-315H	NP
4,453	https://www.mspb.gov/decisions/nonprecedential/MELTON_HEATHER_A_CH_0752_09_0448_M_1_FINAL_ORDER_1918239.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD HEATHER A. MELTON, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER CH-0752 -09-0448 -M-1 DATE: April 21, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Heather A. Melton , Clarksville, Tennessee, pro se. Patrick Sweeney and Katherine E. Griffis , Esquire, Fort Campbell, Kentucky, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her petition for enforcement as moot. 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 the initi al decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 In March 2009 , the appellant filed an appeal challenging the agency’s decision to place her on indefinite suspension for failing to maintain a security clearance. Melton v. Department of the Army , MSPB Docket No. CH-0752 -09- 0448 -I-1, Initial Appeal File (IAF), Tab 1. The administrative judge twice dismissed the appeal without prejudice for refiling at a later date. IA F, Tab 5, Initial Decision ; Melton v. Department of the Army , MSPB Docket No. CH -0752 - 09-0448 -I-2, Appeal File , Tab 8 , Initial Decision . Ultimately, the parties reached a settlement agreement and entered the agreement into the record for enforcement, and the administrative judge dismissed the appellant’s appeal as settled. Melton v. Department of the Army , MSPB Docket No. CH -0752 -09-0448 - I-3, Appeal File (I -3 AF) , Tab 27, Initial Decision. Among other things, the settlement agreement required that the ag ency pay a lump sum of $35,000 in exchange for the appellant’s voluntary resignation, effective no later than August 7, 2010. I -3 AF, Tab 26 at 4 -6. ¶3 In January 2014, the appellant filed a petition for enforcement of the settlement agreement. Melton v. Department of the Army , MSPB Docket No. CH-0752 -09-0448 -C-1, Compliance File (CF), Tab 1. The administrative judge denied the petition for enforcement , finding that the appellant failed to 3 prove noncompliance. CF, Tab 14, Compliance Initial Decision. Th e Board reversed, finding the agency in noncompliance regarding health insurance premiums and associated wage garnishments. Melton v. Department of the Army , MSPB Docket No. CH-0752 -09-0448 -C-1, Order (C -1 Order), ¶¶ 5 -10 (June 18, 2015).2 As a result, t he Board ordered the agency to cancel the appellant’s debts from health insurance premiums and reimburse her any wage garnishments collected after August 5, 2010. Id., ¶ 16. The agency responded by submitting evidence that it both cancelled the appellant’s $2,929.29 debt and reimbursed her wage garnishments of $2,998.71, after which the Board found the agency in compliance. Melton v. Department of the Army , MSPB Dock et No. CH-0752 -09- 0448 -X-1, Tab 24, Final Order (X -1 Final Order) (Jan. 21, 2016).3 ¶4 The appellant appealed the Board’s decision to the U.S. Court of Appeals for the Federal Circuit, where our reviewing court affirmed in part, but remanded for further consi deration of one issue. Melton v. Department of the Army , 664 F. App’x 909 (Fed. Cir. 2016). The court explained that the record included a post-settlement earnings statement showing that $1,019.89 was deducted for a pre-settlement debt, and that amount a ppeared to be owed to the appellant. Id. at 913-14. Because the Board had not yet addressed that $1,019.89 deduction, the court did not draw a final conclusion, but did remand for the Board to do so. Id. at 915. Specifically, the court concluded, “We a ffirm the Board’s decision with one exception: We vacate the decision to the extent that it denies a further refund of $1,019.89, and we remand for consideration of that issue.”4 Id. 2 Although the appellant presented other allegations, including one concerning her former representative and another concerning whistleblower reprisal, the Board found them immaterial or waived as a result of her sett lement agreement. C -1 Order , ¶¶ 11-15. 3 The appellant again raised various other matters, but the Board declined to address them because they were unrelated to the compliance issues in the instant appeal. X -1 Final Order, ¶ 2 n.2. 4 Although the appellant once again raised other issues, such as the validity of the settlement agreement, the agency’s failure to rehire her, and whistleblower retaliation, 4 ¶5 On remand from the court, the agency simply paid the appellant the $1,0 19.89 identified, and the administrative judge dismissed the matter as moot. Melton v. Department of the Army , MSPB Docket No. CH -0752 -09-0448 -M-1, Remand File (RF), Tab 19 at 4 -5, Tab 26 at 4 -5, Tab 27, Remand Initial Decision (RID). The administrative judge found that , while the appellant presented allegations of other damages and wrongdoing, those matters were beyond the scope of the court’s remand. RID at 3. The appellant has filed a petition for review, along with several supplements. Melton v. De partment of the Army , MSPB Docket No. CH -0752 -09-0448 -M-1, Remand Petition for Review (RPFR) File, Tabs 1 -9. The agency has filed a response. RPFR File, Tab 11. The appellant has filed a reply with several additional supplements.5 RPFR File, Tabs 13-19. ¶6 In the instant case, there is no dispute that the agency paid the appellant the $1,019.89 identified by our reviewing court. RF, Tab 19 at 4 -5, Tab 26 at 4-5. Nevertheless, the appellant alleges other damages and improprieties. RPFR File, Tab 1. For example, s he appears to assert that the agency improperly withheld a separate $1,053.22 from her final paycheck. Id. at 7-8. She also appears to assert that the agency should have but failed to compensate her for leave balances upon her separation. Id. at 8-9. In addition, the appellant argues that the agency has forged documents and engaged in retaliation, defamation, and libel. E.g., id. at 5, 9-10. ¶7 A case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome of the case. Hess v. U.S. Postal the court found them without merit or outside the scope of its proceedings. Melton , 664 F. App’x at 912 -15. 5 The appellant also filed a motion to strike the agency’s response as untimely. RPFR File, Tab 12. That motion is denied because the agency’s response is, in fact, timely. The Board’s acknowledgement order specifically identif ies the agency’s deadline as September 8, 2017, and the agency filed its response on that date. RPFR File, Tabs 10-11. 5 Service , 124 M.S.P.R. 40 , ¶ 8 (2016). An appeal will be dismissed as moot if, by virtue of an intervening event, the Board cannot grant any effectual relief in favor of the appellant. Id. Mootness can arise at any stage of lit igation, and a compliance proceeding will be dismissed as moot when , inter alia, there is no further relief the Board can grant. See Burke v. Department of Veterans Affairs , 121 M.S.P.R. 299 , ¶ 13 (2014) (dismissing an appellant’s petiti on for enforcement as moot when an agency ultimately complied with a settlement agreement provision and there was no further meaningful relief that the Board could provide); Bables v. Department of the Army , 86 M.S.P.R. 171 , ¶¶ 19 -20 (2000) (same). ¶8 Because the agency provided the $ 1,019.89 identified by the court’s remand as potentially owed to her, we agree with the administrative judge’s determination that this case is now moot. We will not consider the appellant’s allegations of other improprieties, some of which previously were raised and rejected, because they all exceed the scope of the court’s remand order. Melton , 664 F. App’x at 915; C -1 Order, ¶¶ 11 -14; X -1 Final Order, ¶ 2 & n.2; see, e.g. , Zelenka v. Office of Personnel Management , 110 M.S.P.R. 205 , ¶ 15 n.3 (2008) (r efusing to address an appellant’ s arguments that exceeded the scope of the issues to be addressed on remand), rev’d on other groun ds, 361 F. App’x 138 (Fed. Cir. 2010); Umshler v. Department of the Interior , 55 M.S.P.R. 593 , 597 (1992) (finding that an administrat ive judge properly limited the scope of remand proceedings, consistent with the Federal Circuit’s remand order), aff’d , 6 F.3d 788 (Fed. Cir. 1993) (Table). 6 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 to 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: 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final de cisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposi tion of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, re ligion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 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 . Cont act information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 9 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.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 judi cial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.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. 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdic tion expired on December 27, 2017. The All Circuit Review Act, 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. Co urt 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 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	MELTON_HEATHER_A_CH_0752_09_0448_M_1_FINAL_ORDER_1918239.pdf	2022-04-21	null	CH-0752	NP
4,454	https://www.mspb.gov/decisions/nonprecedential/STERN_ERIN_NY_1221_19_0193_C_1_FINAL_ORDER_1917894.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ERIN STERN, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY-1221 -19-0193 -C-1 DATE: April 20, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Eric Lee Siegel , Esquire and Evan M. Lisull , Esquire, Washington, D.C., for the appellant. Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the compliance initial decision, which denied her petition for enforcement. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findi ngs of material fact; the initial decision is based on 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 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 i nitial 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 dilige nce, 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, w e 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 compliance initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 In the underlying individual right of action (IRA) appeal, the appellant alleged that the agency took several personnel actions in reprisal for her protected disclosures and activities. Stern v. Department of Veterans Affairs , MSPB Docket No. NY -1221 -19-0193 -W-1, Initial Appeal File (IAF), Tab 1 at 6. After holding a hearing, the administrative judge granted the appellant’s request for corrective action in part. IAF, Tab 103, Initial Decision (ID). Specifically, the administrative judge found although the agency proved by clear and convincing evidence that it would have taken several of the alleged personnel actions in the absence of the appellant’s protected d isclosures and activities, it failed to meet its burden as to the app ellant’s proposed removal. ID at 11 -32. However, she did not order any remedial action regarding the proposed removal because the agency had alrea dy rescinded the proposal. ID at 33. Neither party filed a petition for review of the initial decision on the merits of the appeal, which therefore became the final decision of the Board on May 19, 2020 .2 2 After the initial decision became final, the appellant filed an appeal with the U.S. Court of Appeals for the Federal Circuit regarding one of her claims. The court 3 ¶3 On September 15, 2020, the appellant filed a petition for enforcement of the Board’s fin al decision on the merits of her IRA appeal. Stern v. Department of Veterans Affairs , MSPB Docket No. NY -1221 -19-0193 -C-1, Compliance File (CF), Tab 1. In her petition, she sought an order from the Board requiring the agency to confirm that it had impose d discipline in accordance with 38 U.S.C. § 7313 and to identify the supervisor(s) whom it had disciplined. Id. at 5. In response to the appellant’s petition for enforcement, the agency argued th at the Board had not ordered it to take disciplinary action under section 731. CF, Tab 3. After giving the parties an opportunity to address the relevant legal issues, CF, Tab 6, the administrative judge issued a compliance initial decision dismissing the appellant’s petition for enforcement for lack of jurisdiction , CF, Tab 11, Compliance Initial Decision (CID) . She determined that the Board could not order the agency to take disciplinary action in a compliance proceeding when the underlying Board order did not require any disciplinary action. Id. at 3. She further determined that the Board lacks indepen dent jurisdiction to enforce 38 U.S.C. § 731. CID at 3-4. ¶4 The appellant has filed a timely petition for review of the compliance initial decision. Petition for Review (PFR) File, Tab 1. She requests an order pursuant to 5 U.S.C. § 1221 (f)(3) referring the Board’s finding of a prohibited personnel practice to the Office of Special Counsel (OSC). Id. at 5. She also argues that the administrati ve judge could have reopened the merits appeal to order corrective action in the form of discipline, and she notes that she included affirmed the Board’s decision. Stern v. Department of Veterans Affairs , 859 F. App’x 569 (Fed. Cir. 2021). The appellant also filed motions for damages and attorney fees. Stern v. Department of Veterans Affairs , MSPB Docket Nos. NY -1221 -19-0193 -P-1 & NY -1221 -19-0193 -A-1. Those motions were addressed in separate addendum initial decisions an d are not before the Board in this matter. 3 In relevant part, 38 U.S.C. § 731 requires the Secretary of Veterans Affairs to carry out adverse actions against supervisory employees whom the Board d etermines committed certain prohibited personnel practices. 38 U.S.C. § 731(a)(1). 4 discipline in the corrective action she sought before the administrative judge. Id. at 6-7; IAF, Tab 94 at 6-7. The agenc y has responded in opposition to the petition for review, PFR File, Tab 3, and the appellant has filed a reply, PFR File, Tab 4. ¶5 We agree with the administrative judge that the Board lacks jurisdiction over the appellant’s petition for enforcement regardin g discipline of supervisory employees. The Board ’s jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule or regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9 , 10 (Fed. Cir. 1985). The Board has statutory authority to “order any Federal agency or employee to comply with any order or decision issued by the Board . . . and en force compliance with any such order. ” 5 U.S.C. § 1204 (a)(2). Thus, the Board’s enforcement power is limited to actions it has ordered in the underlying appeal. Here, the administrative judge did not order any remedial action for the proposed removal because the agency had already rescinded it. ID at 33. Accordingly, there is no basis for the Board to order any action regarding the disciplin e of supervisory employees in a proceeding to enforce the decision on the merits in this appeal. ¶6 To the extent the appellant argues that the initial decision should have included an order to take disciplinary action, we disagree. The scope of the corrective action available in an IRA a ppeal is defin ed by statute. Specifically, under 5 U.S.C. § 1221 , corrective action in an IRA appeal may include status quo ante relief, “back pay and related benefits, medical costs incurred, tra vel expenses, any other reasonable and foreseeable consequential damages, and compensatory damages.” 5 U.S.C. § 1221 (g)(1)(A). Attorney fees and costs are also included as part of corrective acti on in an IRA appeal. 5 U.S.C. § 1221 (g)(1)(B). ¶7 The Board has a statutory role in disciplining employees for whistleblower reprisal, but that role is quite limited. If the Board determines, base d on evidence presented to it in an IRA appeal , that an employee may have committed a 5 prohibited personnel practice, it shall refer the matter to OSC to investigate and take appropriate action. 5 U.S.C. § 1221 (f)(3).4 If OSC determines disciplinary action is appropriate, it may present a complaint to the Board. 5 U.S.C. § 1215 (a)(1). After adjudicating the complaint, the Board may issue a final order imposing disciplinary action. 5 U.S.C. § 1215 (a)(3)(A)(i). Thus, although Congress did authorize the Board to order disciplinary action against employees who commit prohibited personnel practices, it did not authorize discipline as part of the corrective action ordered in an IRA appeal. ¶8 The appellant correctly notes that 38 U.S.C. § 731 requires the Secretary of Veterans Affairs to take disciplinary action against employees whom the Board (among other entities) determines has committed certain prohibited personnel actions. However, the Board has no statutory role in imposing such discipline other than possibly making the underlying determination. 38 U.S.C. § 731(a)(1). We find no support for the proposition that the Board has jurisdiction to enforce section 731. ¶9 Accordingly, we agree with the administrative judg e that the Board lacks jurisdiction over the appellant’s petition for enforcement and we therefore affirm the compliance initial decision. 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 4 As an alternative to an order to the agency regarding discipline, the appellant requests that the Board issue t he notice to OSC contemplated under 5 U.S.C. § 1221 (f)(3). PFR File, Tab 1 at 5. Such notice is not part of the corrective action available in an IRA appeal and is therefore not properly the subj ect of a petition for enforcement. However, we note that the Clerk of the Board did provide such notice to OSC by letter dated June 11, 2020. The Clerk is directed to provide a copy of that letter to the appellant when issuing this decision. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how cour ts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a p etition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, o n unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representat ive receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 8 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after yo ur representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for 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 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 “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. 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	STERN_ERIN_NY_1221_19_0193_C_1_FINAL_ORDER_1917894.pdf	2022-04-20	null	NY-1221	NP
4,455	https://www.mspb.gov/decisions/nonprecedential/MOSLEY_CRAIG_AT_0752_13_3463_I_1_FINAL_ORDER_1917919.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CRAIG MOSLEY, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER AT-0752 -13-3463 -I-1 DATE: April 20, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Craig Mosley , Huntsville, Alabama, pro se. David C. Points, Jr. , Redstone Arsenal, Alabama, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The agency has filed a petition for revi ew of the initial decision, which reversed the agency’s decision to furlough the appellant . For the reasons set forth below, the agency’s petition for review is DISMISSED as untimely filed without good cause shown . 5 C.F.R. § 1201.114 (e), (g). 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 The appellant filed this appeal to contest the agency’s decision to furlough him for fewer than 30 nonconsecutive days during the last quarter of the 2013 fiscal year. Initial Appeal File (IAF), Tab 1. Because no hearing was held, the initial decision wa s based on the written record contained within the appellant’s individual appeal file and the file associated with the individual appeals consolidated under the caption In re: Redstone Arsenal, Group II v. Department of the Army , MSPB Docket No. AT -0752 -14-0217 -I-1. Consolidated Appeal File (CAF), Tab 1; IAF, Tab 3, Initial Decision (ID) at 1 -2. The record in this appeal closed on June 29, 2016, and the initial decision was issued on July 21, 2016. ID at 1-2. Therein, the administrative judge found that the agency failed to meet its burden of proof that the appellant was not subject to any furlough exception, and he reversed the furlough action. ID at 4. The administrative judge found that, prior to the record’s close, the agency failed to offer any ev idence to rebut the appellant’s claim that his position was exclusively funded through Foreign Military Sales and thus fell within one of the agency’s furlough exceptions. Id. ¶3 On November 2, 2016, the agency filed this petition for review.2 Petition for Review (PFR) File, Tab 1. Therein, the agency representative asserts that he did not know that the initial decision had been issued until the appellant sought his assistance in implementing the Board’s order. Id. at 4. He further asserts that, when he s ought to access the initial decision using the Board’s e -Appeal Online system, he “was asked the preliminary questions that are requested when one initially is accessing a new furlough file r account as there is no MSPB e-Appeal prior history of me having a ccess to Appellant’s case file.” Id. at 4. He also asserts that neither the initial decision that the appellant provided nor the 2 The administrative judge did not order interim relief to avoid a possible overpayment resulting from the payment of back pay in case the Board affirmed the furlough action. ID at 6. It was thus un necessary for the agency to certify compliance with an interim relief order in the petition for review. See 5 C.F.R. § 1201.116 (a). 3 initial decision in the e -Appeal Online Repository referenced any “service of process to me.” Id. at 5. ANALYSIS The petitio n for review is untimely filed, and the agency did not establish good cause for the delay in filing. ¶4 A petition for review generally must be filed within 35 days after the date that the initial decision was issued , or if the party filing the petition shows that the initial decision was received more than 5 days after it was issued, within 30 days after the party received the initial decision. 5 C.F.R. § 1201.114 (e). The initial decision was issued on July 21, 2016 , making its finality date August 25, 2016. ID at 1, 7. The agency’ s petition for review was filed on November 2, 2016. PFR File, Tab 1 at 1. The record reflects that the agency did not request an enlargement of time in whic h to file its petition. W e thus find the agency ’s petition for review untimely filed by 69 days . ¶5 The Board will waive its filing deadline only upon a showing of good cause for the delay in filing. 5 C.F.R. §§ 1201.12 , 1201.114 (g). To establish good cause for the untimely filing of a petiti on for review, a party must establish the exercise of 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). ¶6 The e -Appeal Online Repository record for this appeal shows that the agency representative , as an e -filer, filed the agency response to the consolidated furlough appeal on September 10, 2014 . CAF, Tab 2. Indeed, he references that response in the petition for review. PFR File, Tab 1 at 5. On June 27, 2016, the agency representative also filed as an e -filer a prehearing submission containing the deciding official’s declaration. CAF, Tab 9. On June 28, 2016, a second agency representative registered as an e -filer, stating, “I hereby register all Agency Representatives in this case as e -filers .” CAF, Tab 14. The administrative judge issued the initial decision on July 21, 2016. IAF, Tab 3. The certificate of service for the initial decision states that the agency 4 representative filing this petition for review was se rved by electronic mail o n July 21, 2016. IAF, Tab 4. The agency representative was thus a registered e‑filer for this appeal while it was pending before the administrative judge. Otherwise, he would not have been able to file pleadings via the e -Appeal Online system. 5 C.F.R. § 1201.14 (e)(1). ¶7 As a registered e -filer in the Board’s e -Appeal Online system, the agency representative had certain responsibilities. Registration as an e -filer constitutes consent to accept electronic service of pleadings filed by other registered e -filers and documents issued by the Board. Id. A registered e -filer must notify the Board and other parties of any change in his email address. 5 C.F.R. § 1201.14 (e)(6). He is also responsible for ensuring that email messages from the Board are not blocked by any filters associated with his account. 5 C.F.R. § 1201.14 (j)(2). Additionally, a registered e -filer must monitor case activity in e-Appeal Online Repository to ensure that he has received all the documents related to the cases for which he is registered. 5 C.F.R. § 1201.14 (j)(3). ¶8 When the Board issues documents in a particular appeal, the e -filers for that appeal receive email messages notifying them of the issuance and containing links t o the Repository where they may view and download the documents. 5 C.F.R. § 1201.14 (j)(1). The Board will not normally serve paper copies of the documents on e -filers. Id. Board docum ents served electronically on registered e-filers are deemed received on the date of electronic submission. 5 C.F.R. § 1201.14 (m)(2). ¶9 Nothing in the record shows that the agency represen tative withdrew from his status as an e -filer. See 5 C.F.R. § 1201.14 (e)(4). The record only shows that an additional agency representative registered as an e -filer. CAF, Tab 14. If t he agency representative’s email address had changed, he would have been responsible for informing the Board. Even if a system error occurred, it was nevertheless his responsibility to monitor the Repository for filings pertaining to 5 this appeal. Accordi ngly, we find that the agency failed to show good cause for the delay in filing, and we dismiss the petition for review as untimely filed.3 Alternatively, the Board will not consider the agency’s newly submitted evidence. ¶10 The agency representative asserts that, after he received the initial decision, he inquired with the Human Resources Director at the U.S. Army Aviation and Missile Research, Development and Engineering Center (AMRDEC), as to whether the appellant had been exempt from the furlough. PFR Fil e, Tab 1 at 5. The Human Resources Director reiterated the agency’s position set forth in its September 10, 2014 response that only those AMRDEC employees that met one of 11 exemptions listed in the response were exempt from the furlough. Id.; CAF, Tab 2 at 5-7. The agency representative thus submitted an affidavit from an AMRDEC Human Resources Program Analyst, refuting the appellant’s contention that his position was fully funded through Foreign Military Sales and thus exempt from the furlough. PFR Fi le, Tab 1 at 5, 7 -9. ¶11 Under 5 C.F.R. § 1201.115 (d), the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was u navailable 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). To const itute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed. 5 C.F.R. § 1201. 115(d). The affidavit in question was executed on November 2, 2016, after the record closed in the proceeding before the administrative judge. PFR File, Tab 1 at 8 -9. The agency representative has not explained why the agency failed to present such a n affidavit before the record closed, especially after the administrative judge called attention to the appellant’s 3 The agency representative also failed to submit wit h his petition for review a motion for the Board to accept his filing as timely and/or to ask the Board to waive or set aside the time limit and the accompanying affidavit or sworn statement. PFR File, Tab 2 at 1‑2; see 5 C.F.R. § 1201.114 (g). 6 contention in the Order and Summa ry of Telephonic Prehearing/ Close of the Record Conference almost 2 weeks earlier. CAF, Tab 8 at 13 n.11. Absent a showing that this information was unavailable to the agency despite due diligence, we will not consider it. ¶12 Accord ingly, we dismiss the petition for review as untimely filed without good cause shown for the delay in filing . 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 merits of the furlough appeal. ORDER ¶13 We ORDER the agency to the agency to cancel the appellant ’s furlough effected during discontinuous days during the last quarter of FY 2013 ( i.e., effected during the months of July, August, and September 2013). See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later than 20 days after the date of this decision. ¶14 We also ORDER the agency to pay the appellant the correct amoun t 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 ca lculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we OR DER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. ¶15 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order an d of the actions it has taken to carry out the Bo ard’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). 7 ¶16 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 fu lly 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). ¶17 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFA S), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adj ustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202 , and 1201.203 . If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. 8 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 cour ts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a p etition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of you r discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decisi on. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 10 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 2001 3 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Boar d’s 11 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U. S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “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. 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 Ac t, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit c ourt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: 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 re quest 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: Att orneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll docum ents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Lea ve Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decisi on. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amoun ts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 ‑7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provid e same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	MOSLEY_CRAIG_AT_0752_13_3463_I_1_FINAL_ORDER_1917919.pdf	2022-04-20	null	AT-0752	NP
4,456	https://www.mspb.gov/decisions/nonprecedential/DUGGAR_ANDREA_CH_844E_16_0419_I_2_FINAL_ORDER_1917446.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ANDREA DUGGAR, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-844E -16-0419 -I-2 DATE: April 19, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin A. Graham , Esquire, Liberty, Missouri, for the appellant. Shawna Hopkins , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a pet ition for revie w of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) that disallowed her application for disability retirement under the Federal Employees’ Retirement System (FERS) . Generally, w e grant petitions such as 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant was employed as a Revenue Office r at the Internal Revenue Service (the agency). Duggar v. Office of Personnel Management , MSPB Docket No. CH -844E -16-0419 -I-1, Initial Appeal File (IAF), Tab 11 at 5. The agency decided to remove her on the basis of misconduct effective February 21, 2014 . IAF, Tab 5 at 237 -41, Tab 11 at 6. On March 21, 2014, the appellant filed a Board appeal challenging the removal. Duggar v. Department of the Treasury , MSPB Docket No. CH -0752 -14-0373 -I-1, Initial Appeal File (0373 IAF), Tab 1. On October 17, 2014, t he agency and the appellant entered into a settlement of that Board appeal and a pending equal employment opportunity complaint in which the agency agreed to cancel the removal effective February 21, 2014, and allow her to resign, after a period of leave w ithout pay (LWOP), on December 13, 2014. 0373 IAF, Tab 16. After being allowed several additional periods of LWOP, the appellant resigned from her position, effective June 12, 2015. IAF, Tab 5 at 295-302, Tab 11 at 6. 3 ¶3 Prior to her resignation, on December 1, 2014, the appellant submitted her application for disability retirement. IAF, Tab 5 at 16 -18. OPM disallowed her application on September 8, 2015, finding that she had submitted insufficient evidence regarding the level of any medical impairment in contrast to her ability to perform the duties and responsibilities of her job, or that her conditions were of the magnitude to either prevent her from performing useful and efficient service or warrant total absence from the workplace. Id. at 9-14. The appellant filed a request for reconsideration of that decision. Id. at 8. In response to her request, on May 19, 2016, OPM issued a reconsideration decision again disallowing her application. Id. at 4-7. OPM found tha t she had not submitted sufficient current medical evidence of a condition or combination of conditions that was severe enough to warrant restriction from the workplace or that affected either her attendance or the successful performance of her job. Id. at 6. OPM also found that she did not establish that her conditions were beyond medical management. Id. Further, OPM stated that the agency attempted to provide the appellant an accommodation, which was found to be reasonable, and that she was removed fo r misconduct. Id. ¶4 The appellant filed the instant Board appeal challenging OPM’s reconsideration decision. IAF, Tab 1. After conducting the appellant’s requested hearing, the administrative judge issued an initial decision that affirmed the reconsiderat ion decision.2 Duggar v. Office of Personnel Management , MSPB Docket No. CH -844E -16-0419 -I-2, Refiled Appeal File (RAF), Tab 15, Refiled Initial Decision (RID). ¶5 The appellant has filed a petition for review, and OPM has responded in opposition to her pe tition. Petition for Review (PFR) File, Tabs 1, 3. 2 The administrative judge dismissed the appeal without prejudice and it was automatically refiled. IAF, Tab 20, Initial Decision; RAF, Tab 1. 4 DISCUSSION OF ARGUME NTS ON REVIEW ¶6 To qualify for disability retirement benefits under FERS, an individual must meet the following requirements: (1) the individual must have completed at least 18 months of creditable civilian service; (2) the individual, while employed in a position subject to FERS, must have become disabled because of a medical condition resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position; (3) the disabling medical condition must be expected to continue for at least 1 year from the date the disability retirement benefit s application is filed; (4) accommodation of the disabling medical condition in the position held must be unreasonable; and (5) the individual must not have declined a reasonable offer of reassignment to a vacant position.3 5 U.S.C. § 8451 (a); Henderson v. Office of Personnel Management , 109 M.S.P.R. 529, ¶ 8 (2008); 5 C.F.R. § 844.103 (a). An individual bears the burden of proving her entitlement to disability retirement benefits by preponderant evidence.4 Henderson , 109 M.S.P.R. 529, ¶ 8; 5 C.F.R. §§ 1201.4 (q), 1201.56 (b)(2)(ii). ¶7 The administrative judge found that the appellant did not show that her medical condition ca used a deficiency in her performance. RID at 11 -12. In so finding, she considered that the agency previously removed the appellant and attempted, but ultimately did not deny her a within -grade increase. RID at 11. However, the administrative judge foun d that the appellant’s performance was rated as “fully successful” and that the removal had been based on misconduct. 3 It is undisputed that the appellant completed at leas t 18 months of creditable civilian service under FERS. IAF, Tab 5 at 290, Tab 11 at 5. 4 A preponderance of the evidence is that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find th at a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4 (q). 5 Id. She also found that the appellant did not demonstrate that her medical condition prevented her from standing or driving. RID at 11 -12. ¶8 Next, the administrative judge found that the appellant did not show that her medical condition caused a deficiency in her attendance because there was no evidence that her attendance was deficient after the agency placed her on a leave restriction, the proposed removal did not reference attendance issues, and her LWOP after the settlement agreement was unrelated to attendance issues. RID at 12-13. The administrative judge also found that the appellant had not shown that her condition caused a defic iency in her conduct because she did not establish that the misconduct underlying her removal, such as threatening taxpayers, was related to her condition. RID at -14-15. Further, the administrative judge concluded that the appellant did not establish tha t her medical condition was inconsistent with working in general, working in a particular line of work, or working in a particular type of setting because, among other things, she did not appeal her Social Security Administration (SSA) denial and she ackno wledged working 3 to 7.5 hours per day in another position.5 RID at 15 -19. Last, the administrative judge stated that the appellant is not entitled to disability retirement benefits because she did not demonstrate that she was seeking to control her cond itions through mental health treatment and through controlling her morbid obesity. RID at 19. 5 Although we have considered SSA’s denial of benefits, it is not binding upon us. See Bray v. Office of Personnel Management , 97 M.S.P.R. 209 , ¶¶ 20, 23 (2004) . We also are mindful that the appellant’s ability to work in another position, if the position involves duties and responsibilities that are different than her previously held position, does not by itself exclude her from entitlement to disability retire ment benefits. See 5 U.S.C. § 8451 (a); Angel v. Office of Personnel Management , 122 M.S.P.R. 424 , ¶ 14 (2015) (finding that the appellant’s application for full -time positions and her employment in various part -time positions did not exclude her from eligibility for disability retirement benefits because she showed that her m igraine headaches prevented her from performing the duties of her previously held Biological Science Laboratory Technician position); 5 C.F.R. § 844.103 (a). 6 The appellant is not entitled to disability retirement benefits because she failed to establish the extent to which her conditions can be controlled. ¶9 The app ellant asserts that the record is sufficient to establish the significance of her medical conditions and pain and argues that OPM has not refuted this evidence.6 PFR File, Tab 1 at 13. She points to the opinion of the doctor of osteopathy, who has treate d her for at least 8 years, because he offered numerous opinions about her inability to work while demonstrating significant knowledge of her previous position. Id.; RAF, Tab 12 at 6 -9. She states that he also described how her conditions and medications affected her ability to render useful and efficient service and maintain adequate performance, attendance, and conduct. PFR File, Tab 1 at 13; RAF, Tab 12 at 6 -9. She asserts that her testimony and that of her domestic partner and coworker demonstrate t hat her performance and attendance suffered at the end of her employment due to her medical conditions. PFR File, Tab 1 at 14; RAF, Tab 14, Hearing Compact Disc, Tracks 1 -3. She further points to OPM’s evidence that establishes her deficient attendance a nd leave usage. PFR File, Tab 1 at 14; IAF, Tab 5 at 252 -79, Tab 10 at 10 -18. ¶10 We have considered the appellant’s arguments. However, the Board has repeatedly held that an applicant is not entitled to disability benefits when she fails or refuses to accep t normal treatment. See, e.g. , Smedley v. Office of Personnel Management , 108 M.S.P.R. 31, ¶ 23 (2008). Thus, unfortunately, she is not entitled to disability retirement benefits because she did not comply with her doctors’ advice to control her morbid obesity. RID at 19 -20; IAF, Tab 5 at 84; RAF, Tab 4 at 131 -32, 136. 6 The doctor of osteopathy not ed that the appellant experienced the following conditions: fibromyalgia, limb pain, hand paresthesia, B -12 deficiency, Spina -Bifida Occulata, Stein -Leventhal syndrome, obesity, whole body pain, irritable bowel syndrome, anxiety, depression, migraines, de generative disc disease, osteoarthritis, hypertension, muscle spasms, spondylosis, carpel tunnel syndrome, and peripheral neuropathy. RAF, Tab 12 at 5 -6. 7 We consider that the appellant applied for disability retiremen t benefits in the face of an impending removal. ¶11 The appellant argues that the administrative judge should not have relied upon the rescinded removal in determining her eligibility for disability retirement benefits because the agency agreed to expunge it f rom her record in the settlement agreement. PFR File, Tab 1 at 15 -17; RID at 5 -6, 11 -14, 17; 0373 IAF, Tab 16 at 4; IAF, Tab 5 at 237-50, 302. She notes that the agency submitted both the proposal and the removal letters and that both the supervisor’s st atement and the reassignment and accommodation form reference the removal. PFR File, Tab 1 at 15; IAF, Tab 5 at 20, 22, 237 -50, 302. In support of her argument, the appellant cites Conant v. Office of Personnel Management , 255 F.3d 1371 , 1375 -76 (Fed. Cir. 2001), for the proposition that the initial decision must be overturned because the agency fundamentally breached the settlement agreement by injecting evidence that it agreed not to submit. PFR File, Tab 1 at 16 -17. ¶12 In Conant , the U.S. Court of Appeals for the Federal Circuit determined that the agency breached a settlement agreement when it submitted documents regarding the appellant’s proposed removal that it had agreed to rescind. 255 F.3d at 1376 -77. Further, the court f ound that, although the agency promised to use its best efforts to effectuate the appellant’s disability retirement, submitting these documents actually undermined her application to a degree. Id. Here, the agency agreed to make its best effort to send n otice to OPM advising that the appellant was reinstated. 0373 IAF, Tab 16 at 4. However, unlike in Conant , the agency did not agree to make its best efforts to effectuate the appellant’s disability retirement. Id. at 4, 6. ¶13 While removal for misconduct d oes not preclude receipt of disability retirement benefits, an applicant’s request for disability retirement in the face of a pending removal for misconduct may cast doubt upon the veracity of the application. Henderson , 109 M.S.P.R. 529 , ¶ 9. Thus, since Conan t, the Board has clarified that OPM and the Board may consider evidence of a cancelled 8 removal when the agreement to cancel t he removal was an attempt to allow the applicant to qualify for retirement benefits and as a relevant factor detracting from the application. See, e.g. , Stevenson v. Office of Personnel Management , 103 M.S.P.R. 481 , ¶¶ 11-12 (2006) (finding that the administrative judge should have considered evidence of a cancelled removal action for alleged misconduct in adjudicating the appellan t’s disability retirement application because his failure to submit his application until after his removal for misconduct was relevant and detracted from his application). ¶14 Here, the appellant did not apply for disability retirement benefits until after her removal and the settlement agreement rescinding it. IAF, Tab 5 at 16-18; 0373 IAF, Tab 16. We find that this timing casts doubt as to the veracity of her application. See Wall v. Office of Personnel Management , 116 M.S.P.R. 188 , ¶ 15 (2010) (finding that doubt regarding the appellant’s assertions of disability was appropriate when his asserted symptoms coincided with his termination), aff’d , 417 F. App’x 952 (Fed. Cir. 2011). Further, she was reinstated for several periods of LWOP and appli ed for disability retirement benefits thereafter, but she was never returned to duty. IAF, Tab 5 at 16 -18, 252, Tab 11 at 6; 0373 IAF, Tab 16. Thus, it appears that her reinstatement constituted an attempt to allow her to apply for disability retirement. Accordingly, we find that the administrative judge properly considered the appellant’s application for disability retirement benefits after she had been removed for misconduct in rendering a decision. ¶15 The appellant also states that the administrative jud ge should not have considered her disability retirement application as having been made on the basis of an imminent removal because the settlement agreement rescinding the removal was signed in October 2014, and she did not file her disability retirement application until December 2014. PFR File, Tab 1 at 16; 0373 IAF, Tab 16 at 7; IAF, Tab 5 at 292 -94. We disagree. The settlement agreement, which was signed on October 15, 2014, states that the appellant agreed to resign and would be 9 carried in an LWOP s tatus until December 13, 2014, regardless of any OPM actions or decisions concerning her retirement contributions. 0373 IAF, Tab 16 at 6. Although the appellant signed the settlement agreement rescinding the removal in October 2014, she submitted her app lication while she was already placed on LWOP status. 0373 IAF, Tab 16; IAF, Tab 5 at 16 -18, Tab 11 at 6. We find that she submitted her application for disability retirement benefits after she knew that she would resign and prior to the last day of her LWOP status and that this constitutes a resignation in the face of a removal. ¶16 We conclude that the appellant has not established the extent to which her medical conditions could be controlled and that her application for disability retirement benefits in the face of her removal further detracts from her case. Accordingly, we affirm OPM’s reconsideration decision that denied the appellant’s application for disability retirement benefits. NOTICE OF APPEAL RIG HTS7 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 describ ed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 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. 10 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federa l Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visi t our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 11 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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: 12 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal 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). 8 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. 13 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to t he court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.c afc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board ne ither 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 lin k below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	DUGGAR_ANDREA_CH_844E_16_0419_I_2_FINAL_ORDER_1917446.pdf	2022-04-19	null	CH-844E	NP
4,457	https://www.mspb.gov/decisions/nonprecedential/GREER_WILL_S_DA_0752_17_0149_I_1_FINAL_ORDER_1917050.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILL S. GREER, II, Appellant, v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER DA-0752 -17-0149 -I-1 DATE: April 18, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Will S. Greer, II , Schertz, Texas, pro se. Lawrence Lynch , Esquire, Joint Base San Antonio, Randolph, Texas, for the agency. BEFORE Raymond A. Limon, Vice Chair 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. For the reasons set forth below, we DISMISS the appellant’s petition for review as moot . ¶2 As further detailed in the initial decision of the instant appeal, the appellant held the position of Motor Vehicle Operator at the agency’s Randolph Air Force 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 Base. Initial Appeal File (IAF), Tab 16, Initial Decision (ID) at 2. In October 2013, the agen cy removed him from that position for violating a last chance agreement. Id. ¶3 The appellant filed his first appeal, challenging his removal, but an administrative judge dismissed the matter for lack of jurisdiction and the Board affirmed. Id.; see Greer v. Department of the Air Force , MSPB Docket No. DA-0752 -14-0055 -I-1, Final Order (Sep t. 12, 2014). The appellant then filed a second appeal, again challenging his removal, but an administrative judge similarly dismissed for lack of jurisdiction, based on collateral estoppel, which is also known as issue preclusion. ID at 2; see Greer v. Department of the Air Force , MSPB Docket No. DA-0752 -15-0324 -I-1, Initial Decision (Aug. 8, 2015). In this appeal , his third, the appellant has challenged his removal on ce more. IAF, Tab 1. The administrative judge again dismissed for lack of jurisdiction based on collateral estoppel. ID at 2 -5. ¶4 The initial decision in this appeal was s et to become final on March 30, 2017, unless a petition for review was filed by th at date. ID at 5. Several days after that deadline, on April 5, 2017, the appellant electronically filed a pleading that has been construed as a petition for review. Petition for Review (PFR) File, Tabs 1 -2. In the days that followed, the appellant als o filed a pleading with the U.S. Court of Appeals for the Federal Circuit, asking the court to review his Board appeals. Greer v. Department of the Air Force , 718 F. App’x 962, 964 (Fed. Cir. 2017) . ¶5 During the period that followed, the Clerk of the Board responded to the pending petition for review, explaining tha t it appeared untimely and providing the appellant with an opportunity to submit a motion concerning timeliness. PFR File, Tab 3 at 2. The appellant failed to submit that motion or any other response before the April 22, 2017 deadline for doing so. He did file a June 21, 2017 reply, after the agency moved to dismiss the appellant’s petition as untimely, but 3 his reply contained no argument or evidence concerning his untimeliness. PFR File, Tab s 4-5. ¶6 In December 2017, the Federal Circuit issued a decision that deemed the initial decision in this appeal the Board’s final decision because the appellant failed to submit a timely petition for review or a timely motion to waive his untimeliness with the Board . Greer , 718 F. App’x at 964 (Fed. Cir. 2017). The court further found that the administrative judge correctly dismissed this appeal based on the doctrine of collateral estoppel. Id. at 964-65. ¶7 A case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome of the case. Hess v. U.S. Postal Service , 124 M.S.P.R. 40 , ¶ 8 (2016). An appeal will be dismissed as moot if, by virtue of an intervening event, the Board cannot grant any effectual relief in favor of the appellant. Id. ¶8 Here, the Federal Circuit’s opinion abo ut this case has rendered the appellant’s petition for review with the Board moot. The court found the appellant’s petition for review with the Board untimely and further found that the administrative judge correctly dismissed his appeal based on collater al estoppel. Greer , 718 F. App’x at 964 -65. In light of that intervening event —a decision by our reviewing court —it is not necessary for us to further consider the timeliness of the appellant’s petition or the administrative judge’s conclusion that this appeal is barred by collateral estoppel. 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 l imit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 Although we offer the following summary of available appeal rights, the Merit Systems Protection Boa rd does not provide legal advice 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 fo rum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact t hat forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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. 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 informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative recei ves this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and 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 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 delivery or by a method requiring a 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.3 The court of appeals must receive your petition for 3 The original statutory provision that provided for judicial review of certain whistlebl ower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 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 releva nce is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat . 1510. 8 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GREER_WILL_S_DA_0752_17_0149_I_1_FINAL_ORDER_1917050.pdf	2022-04-18	null	DA-0752	NP
4,458	https://www.mspb.gov/decisions/nonprecedential/YANCEY_WILLIAM_C_SF_0845_21_0519_I_1_FINAL_ORDER_1917118.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILLIAM C. YANCEY, JR., Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER SF-0845 -21-0519 -I-1 DATE: April 18, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 William C. Yancey, Jr. , Kapolei, Hawaii, pro se. Michael Shipley , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has petitioned for review of the December 3, 2021 initial decision in this appeal. Initial Appeal File, Tab 21; 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 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 File, Tab 1. 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 and the agency on January 27, 2022 . PFR File , Tab 9 , at 5, 6 . The document provides, among other things, for the dismis sal of the petition for review. Id. 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 i nto 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 accep ting 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, w e find here that the parties have entered into a settlement agreement, understand its terms, and intend for the agreement to be entered into the record for enforcement by the Board. PFR File, Tab 9 at 6. In addition, we find that the agreement is lawful on its face and that the parties freely entered into it. Accordingly, we find that dismissing the petition for review “with prejudice to refiling” (i.e., the parties norm ally 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 Co de 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 ter ms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not 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 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 4 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit , you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful d iscrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 5 receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar da ys after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 prot ected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibite d personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit o r any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	YANCEY_WILLIAM_C_SF_0845_21_0519_I_1_FINAL_ORDER_1917118.pdf	2022-04-18	null	SF-0845	NP
4,459	https://www.mspb.gov/decisions/nonprecedential/CARROLL_BRIAN_DC_3443_21_0623_I_1_FINAL_ORDER_1917149.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BRIAN CARROLL, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER DC-3443 -21-0623 -I-1 DATE: April 18, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brian Carroll , New Kent, Virginia, pro se. Michael G. Stultz , Portsmouth, Virginia, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal of the agency’s denial of his performance award . On petition for review, the appellant reiterates his arguments from below that the agency’s Performance Management & Appraisal Toolkit provided for appeals to the Board of performance -based actions taken under 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not requi red to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 chapters 43 and 75, and that the agency’s February 2021 policy concerning performance awards was not applicable to his situation .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 cours e of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the f ilings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final de cision. 5 C.F.R. § 1201.113 (b). 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 2 The appellant submits with his petition for review his 2020 -2021 performance appraisal, the agency’s Performance Management & Appraisal Toolkit, and the February 2021 policy. Petition for Review File, Tab 1 at 6 -77. Each of these documents was submitted below and was considered by the administrative judge in the initial deci sion. Initial Appeal File , Tab 5, Tab 11, Initial De cision. They do not provide a basis to disturb the initial decision. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 4 http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If t he action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations 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 submi t 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 commer cial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protecte d activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited pe rsonnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or an y court of appeals of competent jurisdiction.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 Circ uit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any ot her circuit court of appeals of competent jurisdiction. 6 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If yo u submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 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	CARROLL_BRIAN_DC_3443_21_0623_I_1_FINAL_ORDER_1917149.pdf	2022-04-18	null	DC-3443	NP
4,460	https://www.mspb.gov/decisions/nonprecedential/HOLMES_TYSHA_S_AT_0752_11_0263_C_1_ORDER_1916691.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TYSHA S. HOLMES, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER AT-0752 -11-0263 -C-1 DATE: April 15, 2022 THIS ORDER IS NONPRECEDENTIAL1 Evan Greenstein , Washington, D.C., for the appellant. Robert J. Barham , Fort Jackson, South Carolina, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member ORDER ¶1 The agency has filed a petition for review and the appellant has filed a cross petition for review of the compliance initial decision, which granted in part and denied in part the appellant’s petition for enforcement . For the reasons discussed below, we GRANT the agency’s petition for review and DENY the appellant’s cross petition for review. Except as expressl y MODIFIED by this Order 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 correct the relevant dates that the appellant received both interim relief and Office of Workers’ Compensation Programs (OWCP) benefits , we AFFIRM the compliance initial decision that found the agency in partial noncompliance . BACKGROUND ¶2 The appellant was a Physician Assistant who worked in the Department of Preventive Medicine Service2 at the agency’s Moncrief Army Community Hospital. Holmes v. Departm ent of the Army , MSPB Docket No. AT -0752 -11- 0263 -I-2, Appeal File, Tab 8, Exhibit (Ex.) 28. The agency removed the appellant based on four charges of failing to follow supervisory instructions, making an offensive remark and disrespectful behavior towards her supervisor, insubordination, and unauthorized disclosure of medical quality assurance information. Id., Exs. 19, 28. The appellant appealed her removal to the Board. Holmes v. Department of the Army , MSP B Docket No. AT-0752 -11-0263 -I-1, Initial App eal File, Tab 1. ¶3 On appeal, the administrative judge reversed the removal action, finding that the agency violated the appellant’s due process rights , and ordered the agency to provide interim relief . Holmes v. Department of the Army , MSPB Docket No. AT-0752 -11-0263 -I-3, Initial Decision at 6 -7 (Jan. 2, 2013). As a result, t he agency reinstated the appellant to her position, made an undue disruption determination, and placed her on administrative leave. Holmes v. Department of the Army , MSPB Docket No. AT-0752 -11-0263 -C-1, Compliance File (CF), Tab 3 at 16 -26, 28. The agency petitioned for review of the initial decision, and the Board found that the agency did not violate the appellant’s due process rights and remanded the case for further adjudication. Holmes v. Department of the Army , MSPB Docket No. AT -0752 -11-0263 -I-3, Remand Order 2 At various times in the record this office is also referred to as the Preventive Medicine Department. 3 at 2 (July 9, 2014). The Board also found that the appellant was not entitled to interim relief because she was receiving compensation from OWCP. Id. at 3-4. ¶4 During the remand proceedings , the appellant filed a motion claiming that the agency improperly initiated a collection action through the Defense Finance and Account ing Service (DFAS) to recoup her interim relief payments. Holmes v. Department of the Army , MSPB Doc ket No. AT -0752 -11-0263 -B-1, Remand File, Tab 6. The administrative judge docketed her motion as a separate petition for enforcement. CF, Tab 1. After accepting evidence and argument on the matter, he issued a compliance initial decision in which he found two relevant time periods in this case. CF, Tab 12, Compliance Initial Decision (CID) at 3. He found that from January 13 through December 13, 2013 (Period One), the appellant received both interim relief payments and OWCP payments , and from Decemb er 14, 2013, through July 9, 2014 (Period Two), the appellant received only interim relief payments. Id. The administrative judge also found that the appellant was not entitled to retain the interim relief payments for Period One because she was receivin g OWCP benefits at the same time . CID at 3 -4. H e further found that she was entitled to retain the interim relief payments for Period Two. Id. ¶5 The agency has filed a petition for review. Compliance Petition for Review (CPFR) File, Tabs 1 -2. The appell ant has filed a response and a cross petition for review.3 CPFR File, Tab 13. The agency has filed a response to the cross petition for review. CPFR File, Tab 17. 3 On January 20, 2017, the appellant submitted a motion for an enlargement of time to reply to the agency’s response to her cross petition for review. CPFR File, Tab 20. Because the regulations do not provide for such a reply , we deny the motion . 5 C.F.R. § 1201.114 (a). 4 DISCUSSION OF ARGUME NTS ON REVIEW We modify the compliance initial decision to c orrect the dates for the appellant’s receipt of interim relief and OWCP benefits . ¶6 On review, the agency agrees with the administrative judge’s reasoning in the compliance initial decision but asserts that the administrative judge incorrectly identified the dates in the two relevant periods of time. CPFR File, Tab 2 at 4. Specifically, t he agency contends that Period One —during which the appellant received both OWCP benefits and interim relief payments —should be identified as January 2 through December 14, 2013 (as opposed to January 13 through December 13, 2013) . Id. at 5-6. The agency asserts that the appellant was reinstated effective January 2, 2013 , and provides a Standard Form 50 for support. CF, Tab 3 at 18 -21, 28. The agency also asserts that the appel lant was receiving OWCP benefits when she was reinstated and th at she continued to receive those benefits through December 14, 2013. CPFR File, Tab 2 at 6; CF, Tab 3 at 12. The agency contends , therefore, that the correct time frame for Period Two —during which the appellant received interim relief but no t OWCP benefits —is from December 15, 2013 (as opposed to December 14, 2013) , through July 9, 2014. CPFR File, Tab 2 at 7. The agency requests that the dates be corrected so that DFAS may properly complete the calculation for recoupment of any debt owed to the Federal G overnment by the appellant for Period One. Id. at 8. ¶7 We find that t he agency has provided sufficient evidence to establish that the administrative judge incorrectly identified the first relevant period of time , during which the appellant improperly received both interim relief payments and OWCP benefits , and that t he appellant has not challenge d these dates . Accordingly, the correct dates for Period One are January 2 through December 14, 2013. Consequently, Period Two , during which the appellant properly received only interim relief benefits , is December 15, 2013 , through July 9, 2014. 5 The administrative judge correctly found that the appellant received interim relief funds to which she is not entitled . ¶8 It is undisputed that , during Period One the appellant received interim relief payments while receiving OWCP benefits that resulted in an overpayment. In her cross petition for review , the appellant contends that there is no legal authorit y for repaying this alleged debt. CPFR File, Tab 13 at 9. She also argues that repayment under 5 U.S.C. § 8116 (a)(1) is not required because her interim relief payments were not “in return for se rvices performed ,” as required by the statute , because she was on administrative leave due to the undue disruption determination . She therefore argues that her debt should be canceled . Id. at 6, 9-11. We find these arguments unpersuasive. ¶9 If an appellant is receiving OWCP compensation when the initial decision is issued, interim relief generally should not be ordered because it could result in the agency’s pay ing funds in violation of 5 U.S.C. § 8116 (a).4 Davis v. Department of Justice , 61 M.S.P.R. 92 , 95-96, aff’d , 43 F.3d 1485 (Fed. Cir. 1994) (Table). Further, whe n the relief provided is to return the appellant to work and the agency instead makes an undue disruption determination and decides not to return the appellant to work under 5 U.S.C. § 7701(b)(2)(A)(ii) (II), the agency nevertheless is required to pay her during the interim relief period under 5 U.S.C. § 7701 (b)(2)(B) . Davis , 61 M.S.P.R. at 95. The Board has held that an appellant’s recei ving pay under these circumstances is contrary to 5 U.S.C. § 8116 (a). Id. Accordingly, we agree with the administrative judge’s findings that the appellant received funds to which she is not entitled during Period One . ¶10 Concerning the appellant ’s apparent challenge to the agency’s undue disruption determination, we agree with the administrative judge that the Board 4 Section 8116(a) provides, in pertinent part, that “[w]hile an employee is receiving [OWCP] compensation . . . he may not receive salary, pay, or remuneration of any type from the United States, except . . . in return for service actually performed . . . . ” 6 lacks jurisdiction over whether the agency acted appropriately in that regard. CID at 4-5; see King v. Jerome , 42 F.3d 1371 , 1374 -75 (Fed. Cir. 1994). In any event, as the administrative judge properly found, the Board cannot order payments in violation of 5 U.S.C. § 8116 (a). CID at 4; see Davis , 61 M.S.P.R. at 95. Moreover , to the extent the appellant requests that the Board waive the debt as against equity and good conscience , she has not identified —and we are not aware of —any authority under which the Board may do so. Accordingly, we deny the appellant’s cross petition for review. ¶11 Because we are affirming the compliance initial decision that found the agency in pa rtial noncompliance, the agency is directed to file evidence of compliance with the Clerk of the Board, and the appellant will be afforded the opportunity to respond to that evidence. The appellant’ s petition for enforcemen t will be referred to the Board’ s Office of General Counsel, and, depending on the nature of the submissions, an attorney with the Office of General Counsel may contact the parties to further discuss the compliance process. The parties are required to cooperate with that individual in g ood faith. Because the purpose of the proceeding is to obtain compliance, when appropriate, an Office of General Counsel attorney or paralegal may engage in ex parte communications to, among other things, better understand the evidence of compliance and a ny objections to that evidence. Thereafter, the Board will issue a final decision fully addressing the petition for review of t he compliance initial decision and setting forth the appellant’ s further appeal rights and the right to attorney fees, if applic able.5 ORDER ¶12 We ORDER the agency to submit to the Clerk of the Board within 60 days of the date of this Order satisfactory evidence of compliance. This evidence shall adhere to the requirements set forth in 5 C.F.R. § 1201.183 (a)(6)(i), including 5 The subsequent decision may incorporate the analysis and findings set forth in this Order . 7 submi tting evidence and a narrative statement of compliance. The agency’ s submission shall demonstrate , as set forth above and in the compliance initial decision, that it stopped any efforts to recoup interim relief payments made to the appellant during the period from December 15, 2013, through July 9, 2014, and that it provided DFAS with a copy of this Order with instructions not to seek any recoupment of interim relief payments for that time period . The agency must serve all parties with copies of its submission . ¶13 The agency’s submission should be filed under the new docket number assigned to this compliance referral matter, MSPB Docket No. AT-0752 -11- 0263 -X-1. All subs equent filings should refer to the compliance referral docket number set forth above and should be faxed to (202) 653 -7130 or mailed to the following address: Clerk of the Board U.S. Merit Systems Protection Board 1615 M Street, N.W. Washington, D.C. 20419 Submissions also may be made by electronic filing at the Board’s e -Appeal site (https://e -appeal.mspb.gov) in accordance with its regulation at 5 C.F.R. § 1201.14 . ¶14 The appellant may res pond to the agency’s e vidence of compliance within 20 days of the date of service of the agency’s submission. 5 C.F.R. § 1201.183 (a)(8). If the appellant does not respond to the agency ’s evidence of compliance, the Board may assume that she is satisfied with the agency’s actions and dismiss the petition for enforcement. ¶15 The agency is reminded that, if it fails to provide adequate evidence of compliance, the responsible agency official a nd the agency’s representative may be required to appear before the General Counsel of the Merit Systems Protection Board to show cause why the Board should not impose sanctions for the agency’s noncompliance in this case. 5 C.F.R. § 1201.183 (c). The Board’s authority to 8 impose sanctions includes the authority to order that the responsible agency official “shall not be entitled to receive payment for service as an employee during any pe riod that the order has not been complied with.” 5 U.S.C. § 1204 (e)(2)(A). ¶16 This Order does not constitute a final order and therefore is not subject to judicial review under 5 U.S.C. § 7703 (a)(1). Upon the Board’s final resolution of the remaining issues in the petition for enforcement, a final order shall be issued, which then shall be subject to judicial review. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	HOLMES_TYSHA_S_AT_0752_11_0263_C_1_ORDER_1916691.pdf	2022-04-15	null	AT-0752	NP
4,461	https://www.mspb.gov/decisions/nonprecedential/HOLMES_TYSHA_S_AT_0752_11_0263_B_3_REMAND_ORDER_1916692.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD TYSHA S. HOLMES, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER AT-0752 -11-0263 -B-3 DATE: April 15, 2022 THIS ORDER IS NONPRECEDENTIAL1 Aaron Herreras , Esquire, Washington, D.C., for the appellant. Robert J. Barham , Fort Jackson, South Carolina, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member REMAND ORDER ¶1 The appellant has filed a p etition for review of the remand initial decision, which sustained her removal and found that she failed to prove her affirmative defenses . For the reasons discussed below, we GRANT the petition for review, AFFIRM the administrative judge’s findings conce rning the charged misconduct and the affirmative defense of race discrimination, VACATE the administrative 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 judge’s findings concerning the affirmative defense of whistleblower retaliation and the penalty , and REMAND the case to the regional office for furt her adjudication in accordance with this Remand Order . BACKGROUND ¶2 The appellant was a Physician Assistant who worked in the Department of Preventive Medicine (Preventive Medicine) at the agency’s Moncrief Army Community Hospital (Hospital). Holmes v. Department of the Army , MSPB Docket No. AT-0752 -11-0263 -I-2, Appeal File (I -2 AF), Tab 8, Exhibit (Ex.) 28. Prior to the events underlying this appeal, the appellant had performed as the Acting C hief of Preventive Medicine. I -2 AF, Tab 8 at 17. When the Chief of Preventive Medicine position became available , the Hospital’s Deputy Commander for Clinical Services filled the position with an Army Reserve officer who was a Registered Nurse instead of promoting the appellant to the position. Remand Hearing T ranscript (RHT) at 46 -50. Approximately 15 months after the new Chief became her supervisor, the agency removed the appellant based on the following charges: (1) pattern of failing to follow supervisory instructions; (2) making an offensive remark to and disrespectful behavior towards her supervisor ; (3) insubordination ; and (4) unauthorized disclosure of medical quality assurance information. I -2 AF, Tab 8, Exs. 2, 19. The appellant appealed her removal to the Board. Holmes v. Department of the Army , MSP B Docket No. AT-0752 -11-0263 -I-1, Initial Appeal File (IAF), Tab 1. ¶3 On appeal, the administrative judge issued an initial decision that reversed the removal action , finding that the deciding official improperly relied upon a prohibited communication that violated the appellant’s due process rights under Ward v. U.S. Postal Service , 634 F.3d 1274 , 1280 (Fed. Cir. 2011). Holmes v. Department o f the Army , MSPB Docket No. AT-0752 -11-0263 -I-3, Initial Decision at 6-7 (Jan. 2, 2013). The agency petitioned for review and the Board found that the information relied upon by the deciding official was not “new ,” 3 and therefore did not violate Ward , and remanded the case for further adjudication. Holmes v. Department of the Army , MSPB Docket No. AT-0752 - 11-0263 -I-3, Remand Order at 4, 9 ( July 9, 2014 ). ¶4 On remand, the remand administrative judge2 affirmed the removal action. Holmes v. Department o f the Army , MSPB Docket No. AT-0752 -11-0263 -B-3, Remand Initial Decision (RID) (Apr. 22, 2016) . He found all of the charges except the insubordination charge sustained and that a nexus existed between the sustained charges and the efficiency of the service . RID at 15-16, 24 -26. Concerning her whistleblower retaliation claim, h e found that the appellant’s disclosures of possible malpractice by a health care provider were protected and that those disclosures were a contributing factor to her removal under the knowledge/timing test . RID at 19-20. He further found , however, that the agency established by clear and convincing evidence that it would have taken the same action in the absence of the disclosure s. RID at 19-22. Concerning her race discri mination claim, the remand administrative judge found that the appellant failed to show that race was a motivating factor in her removal. RID at 22-24. ¶5 The appellant has filed a petition for review challenging the remand administrative judge’s findings concerning her affirmative defenses of whistleblower retaliation and race discrimination .3 Remand Petition for Review (RPFR) File, Tab 9. The agency has filed a response , to which the appellant has replied . RPFR File, Tab s 11, 13. 2 The administrative judge who heard the case initially retired while the case was pending before the full Board . O n remand , the case was assigned to a different administrative judge , who we refer to as the remand administrative judge. 3 The appellant does not challenge the administrative judge’s findings concerning the charged misconduct. After reviewing the administrative judge’s findings and determinations , we discern no basis upon which to dis turb them, and thus , we have not addressed them on review. 4 DISCUSSION OF ARGUME NTS ON REVIEW We remand the appellant’s affirmative defense of whist leblower retaliation to the regional office. ¶6 In an adverse action appeal such as this, an appellant’s claim of whistleblower re taliation is treated as an affirmative defense.4 Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 19 (2013). In such instances, once the agency proves its adverse action case by a preponderance of the evidence, the appellant must show by preponderant evidence that she made a protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the disclosure was a contributing factor i n the agency’s personnel action.5 Id. ¶7 If an appellant meets this burden, the burden shifts to the agency to establish by clear and convincing evidence that it would have taken the same action in the absence of the protected disclosure. Hamilton v. Depa rtment of Veterans Affairs , 115 M.S.P.R. 673, ¶ 25 (2011) . In determining whether the agency has met this burden, the Board will consider the following factors: (1) the strength of the agency’s evidenc e in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials in volved in the decision; and (3) any evidence that the agen cy takes similar actions against employees who are not whistleblowers, but who are otherwise similarly situated. Carr v. Social Security Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999). 4 All of the material events in this matter occurred before the enactment of the Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112–199, 126 Stat. 1465, which took effect on December 27, 2012. Thus, we will apply the pre-WPEA standards to this appeal. 5 The WPEA expanded protection to disclosure s made to the alleged wrongdoer and disclosures made during the normal course of duties. Day v. Department of Homeland Security , 119 M.S.P.R. 589 , ¶¶ 18, 26 (2013). The Board has found that this expansion constituted a clar ification of —rather than a change in —existing law and , therefore, applied to cases already pending before the Board when it was enacted . Id., ¶ 26. Based on Day, the remand administrative judge allowed the appellant to raise an affirmative defense of whi stleblow er retaliation even though her claim had been struck previously by the initial administrative judge under pre -WPEA law. RID at 2. 5 The Board does not view the se Carr factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather, the Board will weigh the factors together to determine wheth er the evidence is clear and convincing as a whole. Phillips v. Department of Transportation , 113 M.S.P.R. 73, ¶ 11 (2010). Remand is necessary to address alleged protected disclosures not considered by the administrative judge . ¶8 The remand administrative judge found that the appellant made protected disclosures when she filed several incident reports with the Hospital’s Credentials Committee involving the handling of a human immunodeficiency virus ( HIV )6 case and a tuberculosis case by one of the Hospital’s providers. RI D at 19. He also found that she made a protected disclosure to her congressman when s he sought his help in obtaining a copy of a Department of the Army (Army) Investigation into her allegations, and in the process made the same allegations to him. Id. The remand administrative judge found that these disclosures were protected because the y concerned a substantial and specific danger to public health or safety. Id. The parties do not challenge the remand administrative judge’s findings that these disclosures were protected and we find no basis upon which to disturb his conclu sion in this regard. ¶9 The appellant argues , however, that the remand administrative judge erred by failing to consider the following protected disclosures that also were raised before the init ial administrative judge: (1) a December 1, 2009 disclosure to the Office o f Special Counsel (OSC)7 alleging falsification of protected documents by agency staff ; (2) a January 5, 2010 disclosure to the Department of Labor (DOL) , 6 HIV is a virus that attacks white blood cells in the human body, damaging the body’s ability to fight infections. Bragdon v. Abbott , 524 U.S. 624 , 633 -34 (1998). 7 OSC is authorized to receive disclosures of a violation of any law, rule, or regulation, or gross mismanagement, gross waste of funds, abuse of authority, or substantial and specific danger to public health and safety. 5 U.S.C. § 1213 (b). 6 Office of Inspector General (OIG ) alleging program fraud at the Hospital; and (3) a January 8, 2010 disclosure to the Army OIG alleging abuse of authority and whistleblower reprisal by agency management . RPFR File, Tab 9 at 11-13. ¶10 The remand administrative judge ruled below that the appellant would be allowed to pursue o nly whistleblowing claims that previously were raised before the initial administrative judge but were struck based upon valid case law at the time . Holmes v. Department of the Army , MSPB Docket No. AT-0752 -11-0263 - B-2, Remand File (B -2 RF), Tab 10. He also advised the appellant that he would not allow her to raise any additional claims or defenses on remand. Id. Therefore, it is necessary to determine which claims were raised before the initial administrative judge. ¶11 When, on appeal, the initial administrative judge provided the appellant the opportunity to submit copies of her disclosures, she filed documentation showing that she contacted her congressman, she made complaints to the Army and the DOL OIGs, and she filed several incident reports with the Hospital’s Credentials Committee. Holmes v. Department of the Army , MSPB Docket No. AT-0752 -11- 0263 -I-3, Appeal File ( I-3 AF), Tab 13. At least one IG complaint was also raised in the initial hearing. Initial Hearing Transcrip t at 208. Because the appellant’s two OIG complaints were raised before the initial administrative judge , it is unclear why the remand administrative judge did not consider or address them in his initial decision . As to whether any of the appellant’s all eged disclosures were protected, the remand administrative judge ruled that he would permit “bench briefs” on the issue. B-2 RF, Tab 10. However, there is no record of any bench briefs or any summaries showing what disclosures were raised in the briefs a nd which ones were ruled on by the remand administrative judge. While the remand administrative judge may have ruled on the appellant’s additional alleged disclosures, the re is no record of his rulings . Thus, b ecause they were raised below, we find that the remand administrative judge should have 7 considered the OIG complaints when he reinstated the appellant’s defense of whistleblower retaliation. ¶12 Regarding the December 1, 2009 disclosure to OSC, t he appellant’s initial appeal included correspondence wi th OSC regarding a complaint. I -1 AF, Tab 1 at 17-19. The documents attached to her initial appeal relate to a prohibited personnel practice (PPP) investigation by OSC, and make no mention of falsification of documents.8 Nevertheless, in subsequent corr espondence with the initial administrative judge regarding the whistleblower affirmative defense, the appellant advised that the OSC complaint had included information related to the incident reports , and indicated she had also provided OSC with further information about problems existing in Preventive Medicine . I-3 AF, Tab 13 at 5. Additionally, in the remand hearing the appellant testified under oath that the document falsification disclosure was included in her complaint to OSC. RHT at 374-78. Furthe r, OSC apparently conducted interviews as part of its investigation of the appellant’s allegations, although it is unclear whether the document falsification allegations were considered as part of the interviews.9 IAF, Tab 1 at 19. Thus, we find that the appellant has provided a sufficient basis for concluding that she exhausted this disclosure before OSC. ¶13 Under the WPEA, t he Board has declined to apply 5 U.S.C. § 2302 (b)(9)(C) retroactively when an employee alleges that a personnel action has been taken as a result of disclosing information to an OIG or to OSC . Colbert v. Department of 8 Falsification of documents is, however, referenced in the Army OIG complaint. I-3 AF, Tab 4 at 81-82. 9 If OSC received allegations about the falsification of a complainant’s personnel documents, whether a s part of an initial complaint or in the course of a PPP investigation, OSC could possibly have made a separate referral to its Disclosure Unit (which receives disclosures under different authority ( 5 U.S.C. § 1213 ) than OSC’s authority to receive and investigate PPPs ( 5 U.S.C. § 1212 (a)(2), 1214(a)(1)(A))) or simply considered the allegations as part of the PPP investigation. Given the evi dence the appellant has provided, it seems more likely that the allegations were simply considered as part of the PPP investigation. 8 Veterans Affairs , 121 M.S.P.R. 677 , ¶¶ 6-7 (2014). Nevertheless, the appellant’s disclosures should have been considered by the remand administrative judge under 5 U.S.C. § 2302 (b)(8)(B) (i). Id., ¶ 8. Prior to the enactment of the WPEA, that section of the statute stated, in pertinent part, that it is a prohibited personnel practice to take or fail to take, or threaten to take or fail to take, a personnel acti on concerning an y employee “because of . . . any disclosure to the Special Counsel, or to the Inspector General of any agency” of information that the employee reasonably believes evidences “a violation of any law, rule, or regulation.” 5 U.S.C. § 2302 (b)(8)(B)(i) (2011); see Colbert , 121 M.S.P.R. 677 , ¶ 8. Accordingly, we find that fu rther adjudication is necessary to determine whether the appellant’s OIG and OSC disclosures were protected under section 2302(b)(8) . Therefore, we remand the appeal to develop the record, including hearing testimony, concerning the appellant’s OIG and OSC complaints . Remand is necessary to conduct a more thorough clear and convincing evidence analysis. ¶14 On review, the appellant argues that the remand administrative judge committed numerous adjudicatory errors, many of which pertain to the appellant’s claim that he did not consider all of the evidence in concluding that the agency established by clear and convincing evidence that it would have taken the alleged personnel action at issue absent the appellant’s alleged whistleblowing activity . RPFR File , Tab 9 at 7-11. We agree and find that the remand administrative judge did not properly evaluate all of the relevant evidence in reaching his conclusion that the agency met this high burden of proof. ¶15 The U.S. Court of Appeals for the Federal Circuit in Whitmore v. Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012), provided guidance regarding the proper consideration of evidence presented by an agency in evaluating whether the agency met the burden to prove the clear and convincing element. The court emphasized that “[e]vidence only clearly and convincingly 9 supports a conclusion when it does so in the aggregate considering all the pertinent e vidence in the record, and despite the evidence that fairly detracts from that conclusion.” Id. at 1368. The court further determined that “[i]t is error . . . to not evaluate all of the pertinent evidence in determining whether an element of a claim or defense has been proven adequately.” Id. The court found in Whitmore that the administrative judge had taken an unduly dismissive and restrictive view on the ex istence and strength of any motive to retaliate by the agency and that remand for further fact finding was necessary. Id. at 1370 -72, 1377. ¶16 Here, the remand administrative judge identified the appellant’s disclosures as protected disclosures to the Hosp ital’s Credentials Committee involving the mishandling of an HIV case and a tuberculosis case by one of the Hospital ’s providers, and a subsequent letter to her congressman requesting assistance in obtaining a copy of an Army Investigatio n into her allegat ions. RID at 19. The remand administrative judge then made brief conclusory findings without mentioning any of the evidence supporting the appellant’s position for the challenged personnel action at issue . RID at 21-22. He determined , without discussin g any of the evidence or hearing testimony , that the appellant failed to identify any reason why her supervisor, the proposing official, and the deciding official “would not have been well pleased by the appellant’s faithful execution of her job duties in reporting the mishandling of the HIV and tuberculosis cases to the Credential’s [sic] Committee.” RID at 21. He also concluded that , even though the appellant argued that the deciding official knew of her disclosure to her congressman, “there is simply n o reason for [the deciding official] to have been concerned about the two incidents about which the appel lant made disclosures.” RID at 21 n.14. The remand administrative judge found that the deciding official “had no motive whatsoever to retaliate again st the appellant. None of the alleged whistleblower disclosures were against him, directly impacted him, or appear to have had the potential to impact him.” RID at 21. He 10 then found that the appellant’s disclosures “were clearly of no consequence to [the deciding official] and the appellant has not suggested why they should have been.” Id. Conc luding, he found that “this was not a close case on the issue of [the appellant’s] guilt or innocence of the charges, nor on the penalty.” RID at 22. ¶17 The only evidence relied on by the remand administrative judge in determining there was “no motive whatsoever to retaliate” by the agency , however, was the deciding official’s testimony that he could not even recall the nature of the a ppellant’s disclosures. RID at 21. Similarly, without any discussion of the relevant evidence, he relied on the seriousness of the sustained charges to conclude that the agency proved by clear and convincing evidence that it would have taken the same action even in the absence of the whistleblowing activity . RID at 21-22. Thus, t he remand initial decision does not reflect that the administrative judge’s clear and convincing analysis was based on all of the evidence considered as a whole. ¶18 While we agree with the remand admini strative judge that the agency presented significant evidence in support of the challenged personnel action, th at finding alone is insufficient to support a finding that the agency proved by clear and convincing evidence that it would have taken the same a ction in the absence of the appellant’s protected whistleblowing. See R yan v. Department of the Air Force , 117 M.S.P.R. 362 , ¶ 15 ( 2012). Furthermore, we find that , under Whitmore , the remand administrative judge’s finding that there was no evidence that the deciding official had a retaliatory motive against the appellant because he was outside of her chain of command and was not i mplicated by her whistleblowing is “an unduly dismissive and restrictive view of Carr factor two.” 11 Whitmore , 680 F.3d at 1372 . Additionally, the remand administrative judge made no findings concerning Carr factor three.10 ¶19 Moreover , although the remand a dministrative judge reinstated the appellant’s affirmative defense of whistleblower retaliation due to a change in law, he denied the appellant’s request to recall the proposing official as a witness because she already had testified and was cross -examined at length. B-2 RF, Tab 5 at 8. However, because the appellant’s whistleblower retaliation claim was excluded by the initial administrative judge during the first hearing, the appellant had no real opportunity to question this witness concerning her reta liation claim. The hearing transcript also reflects that the remand administrative judge halted a line of questioning concerning the appellant’s disclosure to her congressman as not relevant because she already had established a pr ima facie case of whistl eblower retaliation . RHT at 392-93. We find that this testimony should not have been halted and that further fact finding is required concerning whether the agency met its burden of proof . On remand, the a dministrative judge should conduct a Whitmore analysis, making detailed findings concerning the agency’s motive to retaliate11 and its treatment of similarly situated nonwhistleblowers. 10 In Whitmore , the court held that “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis,” but that the failure to produce evidence if it exists “may be at the agency’s peril ” and may cause the agency to fail to meet its clear and convincing burden. Whitmore , 680 F.3d at 1374 . Further, because it is the agency’s burden of proof, when the agency fails to introduce relevant comparator evidence, the third Carr factor cannot weigh in favor of the agency. Smith v. General Services Administration , 930 F.3d 1359 , 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency , 908 F.3d 1291 , 1299 (Fed. Cir. 2018) . 11 In evaluating this factor on remand, the administrative judge should fully consider all of the record evidence relevant to whether there was a motive to retaliate and the extent of that motive. Whitmore , 680 F.3d at 1368 . This includes con sidering whether a motive to retaliate can be imputed to the agency officials involved, whether the disclosure reflects on their capacities as managers, and whether those officials possessed a “professional retaliatory motive” to retaliate because the whis tleblower’s disclosures implicated agency officials and employees in general. Id. at 1370 -71; see Robinson v. Department of Veterans Affairs , 923 F.3d 1004 , 1019 -20 (Fed. Cir. 2019) 12 The appellant did not prove her claim of race discrimination. ¶20 The appellant argues that the remand administrativ e judge took an unduly restrictive view on what it means to be similarly situated to the comparator employee in finding that she failed to prove her discrimination claim. RPFR File, Tab 9 at 25-26. She asserts that she engaged in the same inappropriate a nd unprofessional con duct as the comparator employee and that race was the only differentiating factor. Id. We find no error with the remand administ rative judge’s analysis of this claim. ¶21 In the remand initial decision, the remand administrative judge identified the legal standards set forth in Savage v. Department of the Army , 122 M.S.P. R. 612 (2015), discussed various methods of direct and circumstantial evidence, evaluated comparator evidence (including comparing the appellant with the other employee involved in the incident resulting in the insubordination charge), and concluded that t he appellant did not prove her race discrimination claim. RID at 22-24. When the remand administrative judge issued the remand initial decision, he did not have the benefit of the Board’s decision in Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 (2016). In Gardner , the Board clarified that Savage does not require administrative judges to separate “direct” from “indir ect” evidence; rather, the Board reaffirmed its holding in Savage that the dispositive inquiry is whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Id., ¶ 30; Savage , 122 M.S.P.R. 612, ¶ 51. ¶22 Here, the remand administrative judge considered the evidence and determined that the comparator identified by the appellant is not a proper comparator because the appellant failed to show that she and the comparator engaged in similar misconduct without differentiating or mitigating circumstances that would distinguish their misconduct or the appropriate discipline for it. RID (considering under the second Carr factor whether there was a professional motive to retaliate because the disclosures implied i neptitude and deceit within the agency). 13 at 23. The remand administrative judge correctly found that the appellant had received multiple warnings regarding the consequences of her disobedience and subsequently was removed based on several charges, includin g multiple specifications of failure to follow instructions and the unauthorized disclosure of medical quality assurance information. In comparison, the other employee would have faced a single charge of insubordination and there was no evidence showing that she had received the benefit of multiple warnings. In addition, the remand administrative judge found that testimony showed that the appellant’s supervisor considered the comparator to be the victim of the encounter whereas the appellant was the aggre ssor, and that the deciding official was unaware of the appellant’s race when he decided her case. Id. Thus, we find that the remand administrative judge considered the documentary and testimonial evidence as a whole and properly concluded that the appel lant failed to show that race was a motivating factor in her removal. Id. Accordingly, we affirm the administrative judge’s conclusion that the appellant did not prove this affirmative defense.12 12 The Age Discrimination in Employment Act states that “personnel actions . . . shall be made free from any discrimination based on age.” 29 U.S.C. § 633a (a). Similarly, title VII requires that su ch actions “shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e -16(a). In Savage , 122 M.S.P.R. 612 , ¶¶ 48-50, the Board adopted the analytical framework of Mt. Healthy City School District Board of Education v. Doyle , 429 U.S. 274 (1977), for analyzing claims arising under title VII. As set forth above, the Board in Savage held that it first inquires whether the appellant had shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage , 122 M.S.P.R. 612 , ¶ 51. Such a showing is sufficient to establish that the agency violated title VII. Id. If the appellant meets his burden, the Board then inquires whether the agency has shown by preponderant evidence that it still would have taken the contested action in the absence of the discriminatory or retaliatory motive. Id. If the agency makes that showing, its title VII violation will not require reversal of the action. Id. After Savage was decided, the Supreme Court interpreted the language in 29 U.S.C. § 633a (a) in Babb v. Wilkie , 140 S. Ct. 1168 (2020). The Court held that to obtain “injunctive or other forward -look ing relief,” the plaintiff must show that age discrimination “play[ed] any part in the way a decision [was] made.” Babb , 140 S. Ct. at 1173 -74, 1177 -78. However, a plaintiff “must show that age discrimination was a 14 ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board but-for cause of the employment outcome ” to obtain “reinstatement, backpay, . . . or other forms of relief related to the end result of an employment decision.” Id. at 1177 -78. Thus, under both Savage and Babb , some relief is available if the prohibited consideration was a motivating factor in the challenged personnel action, but full relief is available only if the prohibited consideration was the but -for cause of the action. Although Savage and Babb appear t o diverge on the question of which party has the burden to prove or disprove but -for causation, we need not decide in this case whether the analytical framework applied in Savage must be revised in light of Babb. 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 discrimination was the but -for cause of that decision.	HOLMES_TYSHA_S_AT_0752_11_0263_B_3_REMAND_ORDER_1916692.pdf	2022-04-15	null	AT-0752	NP
4,462	https://www.mspb.gov/decisions/nonprecedential/GRIGIONI_DEBRA_LYNN_PH_315H_16_0315_I_1_FINAL_ORDER_1916693.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DEBRA LYNN GRIGIONI, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-315H -16-0315 -I-1 DATE: April 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Debra Lynn Grigioni , West Deptford, New Jersey, pro se. Marcus S. Graham , Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction her appeal of the termination of her appointment in the excepted service . Generally, we grant petitions such as this one only in the following circumstances : the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 or regulation or the erroneous 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 availabl e when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the p etitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 The appellant was appointed to the Nuclear Medicine Technologist position in the excepted service on February 7, 2016 . Initial Appeal File (IAF), Tab 1 at 1, Tab 4 at 14. Her appointmen t required completing a 1‑year trial period. IAF, Tab 4 at 14. Approximately 11 weeks after the effective date of her appointment, the agency issued a notice dated April 21, 2016, informing her of its decision to terminate her employment on April 22, 201 6. Id. at 35-37. The notice also set forth information regarding the filing of an appeal with the Board . Id. The appellant filed a Board appeal, which challenged the propriety and the procedural processing of her termination . IAF, Tab 1. She requested a hearing. Id. at 2. ¶3 The agency argued that the Board lacks jurisdiction over the appeal because the appellant was not an “employee” as defined at 5 U.S.C. § 7511 (a)(1)(C) with adver se action appeal rights under 5 U.S.C. chapter 75, and she failed to make an allegation of one of the limited regulatory grounds for appeal set forth in 5 C.F.R. § 315.806 . IAF, Tab 4 at 7-8. The administrative judge issued an order directing 3 the appellant to address the jurisdictional issues, but she did not respond. IAF, Tab 2. ¶4 In his initial decision, the administrative judge acknowledged that, in apprising the appellant of her juris dictional burden, he had mistakenly informed her of how to establish Board jurisdiction over a probationary termination of a competitive -service appointment , although her appointment was in the excepted service . IAF, Tab 5, Initial Decision (ID) at 2 & n. 1. He explained how the appellant could establish that she was an “employee” in the excepted service as set forth in 5 U.S.C. § 7511 (a)(1). ID at 3. He found that she lacked veterans’ preference rights and had less than 1 year of Federal service at the time of her termination . ID at 4. Thus, he concluded that she did not meet the statutory definition of an employee under 5 U.S.C. § 7511 (a)(1)(B) -(C) and, based on the written record, dismissed the appeal for lack of jurisdiction. Id. ¶5 The appellant has filed a petition for review, and the agency has filed a response in opposition. Petition fo r Review (PFR) File , Tabs 1, 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶6 On review, the appellant does not dispute the administrative judge’s finding that she lacks veterans’ preference . PFR File, Tab 1. Thus, to qualify as an “employee ” with appeal rights under 5 U.S.C. chapter 75, the appellant, as an individual in the excepted service, must show that she either is not serving a probationary or trial period under an initial appointment pending conversion to the competitive service, or has completed 2 years of current continuous service in the same or similar position in an Executive agency under other than a temporary appointment limited to 2 years or less. Ramirez -Evans v. Department of Veterans Affairs , 113 M.S.P.R. 297, ¶ 9 (2010). The appellant bears the burden of establishing jurisdiction by a preponderance of the evidence in a termination 4 appeal .2 Swango v. Department of Veterans Affairs , 59 M.S.P.R. 235, 241 (1993); 5 C.F.R. § 1201.56 (b)(2)(i)(A) . ¶7 The appellant makes no claim that she was serving a tri al or probationary period under an initial appointment pending conversion to the competitive service . PFR File, Tab 1. R ather, she argues that she qualifies as an employee with a right to a Board appeal because she was a “full [-]time employee” whose appointment afforded the benefits of a Thrift Savings Plan (TSP) and leave accrual. Id. at 3. In support of her argume nt, she submits a copy of her TSP Election Form dated February 8, 2016, and a copy of her Earning and Leave Statement for the pay period ending February 20, 2016. Id. at 5-6. 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). However, the issue of jurisdiction is always before the Board and may be raised by any party or sua sponte by the Board at any time during a Board proceeding . See Lovoy v. Department of Health & Human Service s, 94 M.S.P.R. 571 , ¶ 30 (2003). Here, the two documents submitted on review predate the close of the record below, and the appellant has not shown that they previously were un available . Furthermore, neither document shows that she completed more than 11 weeks of Federal service , as found in the initial decision . ID at 4. Thus, we find that this evidence and argument does no t provide a basis for disturbing the initial decision. 2 An appellant must be given explicit information on how to establish jurisdiction over a Board appeal. Burgess v. Merit Systems Protection Board , 758 F.2d 641 , 643 -44 (Fed. Cir. 1985). As noted above, t he administrative judge ’s order on jurisdiction did not inform the appellant of how to establish jurisdiction over the termination of an excepted -service appointment , but t he initial decision provided the information . Thus, the appellant had an opportunity to meet her jurisdictional burden in her petition for review . See Scott v. Department of Justice , 105 M.S.P.R. 482 , ¶ 6 (2007). 5 ¶8 The appellant also asserts that the Board has jurisdiction over her appeal because the termination notice states that she is entitled to such an appea l. PFR File, Tab 1 at 3. She provides a copy of the termination notice , which sets forth that she is entitled to appeal to the Board if she alleges discrimination due to marital status or partisan political reasons or her removal was not effected in accordance with the procedural req uirements of 5 C.F.R. § 315.805 . Id. at 4. She argues that she did not receive the notice, which was dated April 21, 2016, until the date that the action became effective on April 22, 2 016. Id. at 3. To the extent that the appellant argues that she has a regulatory right of appeal to the Board under 5 C.F.R. § 315.806 of a termination that was not effected in accordan ce with the procedural requirements of 5 C.F.R. § 315.805 , we find that this argument is unavailing . It is undisputed that she was appointed to a position in the excepted service. IAF, Tab 1 , Tab 4 at 7, 14; PFR File, Tab 1 . The regulatory appeal rights set forth in 5 C.F.R. § 315.806 generally do not apply to individuals in the excepted service. See Barrand v. Depart ment of Veteran s Affairs , 112 M.S.P.R. 210, ¶ 13 (2009) . ¶9 The agency asserted below that it had appointed the appellant to a positi on in the excepted service under the authority of 38 U.S.C. § 7401 (3), even though the Standard Form 50 documenting the appointment show s that she was appointed under 38 U.S.C. § 7401 (1). IAF, Tab 4 at 7 , 14. This discrepancy has no effect on the outcome of the jurisdictional issue. The Board has held that an individual appointed under section 7401(3) has no regulatory right to a Board appeal of a termination under 5 C.F.R. § 315.806 , a provision that applies only to an individual in the competitiv e service. Ramirez -Evans , 113 M.S.P.R. 297, ¶¶ 9‑10 & n.2 . Similarly, an individual appointed to a position in the excepted service under 38 U.S.C. § 7401 (1) has n o Board appeal right under 5 U.S.C. chapter 75 or 5 C.F.R. § 315.806 . See Pichon v. Department of Veteran s Affairs , 67 M.S.P.R. 325, 327 (1995) (finding that a nurse appointed under 38 U.S.C. § 7401 (1) is appointed without considering civil service requirements regarding qualifications 6 and is excluded from the competitive service ). Furthermore, an agency’s erroneous notice of appeal rights cannot ex pand the Board’s jurisdiction. Barrand , 112 M.S.P.R. 210, ¶ 13. ¶10 Accordingly, we find that the appellant has provided no basis to disturb the administrative judge’s initial decision, which dismissed her appeal for lack of Board jurisdiction. NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By statute, the nature of your claims determines the time limit for seeking such 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 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of r eview rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 8 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 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov /Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S. C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a repr esentative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by reg ular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 9 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board's disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. C ourt of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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 whistleblowe r reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 10 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for 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. Contact information for the courts of appeal s can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GRIGIONI_DEBRA_LYNN_PH_315H_16_0315_I_1_FINAL_ORDER_1916693.pdf	2022-04-15	null	PH-315H	NP
4,463	https://www.mspb.gov/decisions/nonprecedential/JORDAN_RONALD_M_CB_7121_22_0005_V_1_FINAL_ORDER_1916741.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RONALD M. JORDAN, JR., Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER CB-7121 -22-0005 -V-1 DATE: April 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ronald M. Jordan, Jr. , Joliet, Illinois, pro se. Bobbi K. Mihal , Esquire, St. Louis, Missouri, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 Pursuant to 5 U.S.C. § 7121 (d), the appellant requests rev iew of an arbitrator’s decision that denied his grievance challenging his removal for failure to maintain a regular schedule. For the reasons set forth below, we DISMISS the appellant’s request for lack of jurisdiction . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 The appellant was a Postal Support Employee Sales and Distribution Associate who was removed from the Federal service effective September 11, 2018 , for failure to maintain a regular schedule. Request for Review (RFR) File, Tab 5 at 22-24. The appellant filed a grievance challenging his removal, and after holding a hearing, the arbitrator issued a decision on November 12, 2021, denying the grievance and finding that the agency had just cause to remove him. RFR File, Tab 1 at 6. ¶3 The appellant submitted an appeal form to the Board’s Central Regional Office, attaching a copy of the arbitrator’s decision, which was forwarded to the Office of the Clerk of the Board . RFR File, Tab 1. The Office of the Clerk then issued an acknowledgment order, setting forth the el ements of a request for review , explaining the jurisdictional requirements of a request for review , and affording the appellant an opportu nity to respond . RFR File, Tab 2 at 1 -3. The appellant did not respond to the order; however, the agency filed a response in opposition to the appellant’s request for review . RFR File, Tab 5 at 4-12. DISCUSSION OF ARGUME NTS ON REVIEW ¶4 The Board typically has jurisdiction to review an arbitration decision under 5 U.S.C. § 7121 (d) whe n the subject matter of the grievance is one over which the Board has jurisdiction, the appellant has alleged discrimination as stated in 5 U.S.C. § 2302 (b)(1) in connection with the underlying action, and a final decision has been issued. Anderson v. U.S. Postal Service , 109 M.S.P.R. 558, ¶ 4 (2008). However, a Postal Service employee does not have the right of Board review of an arbitration decision because 5 U.S.C. § 7121 does not apply to the Postal Service. Id. We therefore dismiss the appellant’s request for review of the arbitration decision for lack of jurisdiction. Id. ¶5 However, we acknowledge that the Board may have jur isdiction over the appellant’s removal becau se a Postal Service employee can file a grievance and a 3 de novo Board appeal from the same action. Id., ¶ 5. Nevertheless , it appears that the appellant was seeking to request the Board’s review of the arbitrator’s decision , as he attached a copy of the arbitrator’s decision to his submission without further explanation. RFR File, Tab 1. Furthermore, there is no evidence in the record that indicates that the appellant was attempting to fi le a Board appeal of his removal . For example, the appellant did not object to the Central Regional Office forwarding his submission to the Clerk of the Board or the Clerk’s Acknowledgment Order treating his submission as a request for review of the arbit rator’s decision. RFR File, Tabs 1 -2. In fact, a footnote to the Acknowledgment Order indicates that the Clerk of the Board confirmed through an email exchange the appellant’s intent that his submission be processed as a request for review of the arbitra tor’s decision. Id., Tab 2 at 1 n*. Accordingly, because it does not appear that the appellant wished to file a Board appeal of his removal, we do not forward his submission to the regional office. However, to the extent that the appellant wishes to fil e a Board appeal of his removal, he may do so with the Central Regional Office.2 NOTICE OF APPEAL RIG HTS You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the natur e of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal ri ghts, the Merit Systems Protection Board does not provide legal advice 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 jurisd iction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 We make no findings on jurisdiction or timeliness regarding an appeal of the appellant’s removal . 4 filing time limits and requirements. Failure to file within the applicable time limit may result in the di smissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the F ederal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representa tive in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 signat ure, it must be 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 op tion applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 p ractices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 Appe als for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be fou nd at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	JORDAN_RONALD_M_CB_7121_22_0005_V_1_FINAL_ORDER_1916741.pdf	2022-04-15	null	CB-7121	NP
4,464	https://www.mspb.gov/decisions/nonprecedential/GINSBERG_JAY_AT_1221_21_0116_W_1_FINAL_ORDER_1916755.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JAY GINSBERG, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-1221 -21-0116 -W-1 DATE: April 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shannon Polvi , Esquire, Columbia, South Carolina, for the appellant. Deetric M. Hicks , Esquire, Decatur, Georgia, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in his individual right of action (IRA) appeal . On petition for review, the appellant argues that the administrative judge erred in her analysis of the Carr factors, as set forth in Carr v. Social Security 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 Administration , 185 F.3d 1318 , 1323 (Fed. Cir. 1999) . 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 regula tion 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 th e 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 120 1.115 ( 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 pe tition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the administrative judge’s findings regarding the second and third Carr factor s, we AFFIRM the initial decision. ¶2 We agree with the administrative judge that the appellant made a prima facie case of whistleblower reprisal, and that the agency demonstrated by clear and convincing evidence that it would have taken the same actions against the appellant even in the absence of his protected disclosure an d protected activity. Initial Appeal File (IAF), Tab 25, Initial Decision (ID ) at 6-13. In determining whether the agency met its burden, the administrative judge properly considered all relevant factors, including the following: the strength of the age ncy’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 whist leblowers but who are otherwise similarly situated. ID at 10 -13; Carr , 185 F.3d at 1323. ¶3 Regarding the first factor, the administrative judge reasoned that all of the personnel actions were the result of the appellant’s removal from his 3 psychologist/neuropsychologist position, the loss of his credentials , and agency policy regarding research funding. ID at 11 -12. As such, she found that the agency’s evidence in support of the personnel actions was strong. ID at 12. We discern no error with this finding. ¶4 Regarding the second Carr factor, the administrative judge found that the Director was largely responsible for the personnel actions but that he was simply following agency policy. ID at 12. Thus, she found that there was “virtually no evidence of motivation to retaliate against the appellant.” Id. However, t he U.S. Court of Appeals for the Federal Circuit has articulated a broader and more flexible approach to this factor . See Miller v. Department of Justice , 842 F.3d 1252 , 1261 -62 (Fed. Cir. 2016) (explaining that the second Carr factor should be evaluated “more generally” because the factor is directed at agency officia ls involved in making the decision, not just at the employee’s direct supervisor); Whitmore v. Department of L abor , 680 F.3d 135 3, 1370 (Fed. Ci r. 2012) (finding that those responsible for the agency’s performance overall may be motivated to retaliate even if they were not directly implicated by the disclosures or did not personally know the whistleblower because the criticism could reflect on the m in their capacities as managers and employees). ¶5 Based on this language, we acknowledge that the administrative judge’s finding as stated above may have been an overstatement of the record . ID at 12. Here, two of the agency officials responsible for or directly involved in several of the personnel actions at issue —the Director and the Associate Chief of Staff —are managers and were aware of the appellant’s protected disclosure and/or protected activity.2 Thus, consistent with Miller , Whitmore , and sim ilar cases, a motive to retaliate may have existed. Nonetheless, we find no other motive to retaliate 2 Other agency employees, such as an Office of Research & Development employee and the Deputy Director also appear to have been involved in the personnel actions, but there is no evidence that they w ere aware of the appellant’s protected disclosure or protected activity. IAF, Tab 24 at 64, 70 -72. 4 absent the basic factors listed above, and thus, any motive to retaliate, if it existed here, was minimal . ¶6 Regarding the third Carr factor, the administr ative judge stated that the agency “failed to present evidence of nonwhistleblower comparator employees.” ID at 12. In Miller , the court observed that the absence of evidence related to this factor could be found to cut slightly against the agency and co uld cause it to f ail to prove its case overall. 842 F.3d at 1262; Whitmore , 680 F.3d at 1373. T he agency, however, did assert that there simply were no similarly situated doctors who lost their clinical privileges and their Veterans Affairs (VA) appointm ents. IAF, Tab 24 at 12-15. The appellant does not appear to dispute this assertion. PFR File, Tab 1. Thus, the agency would not have been able to produce any evidence that it takes similar actions against employees who are not whistleblowers but who a re otherwise similarly situated. Therefore, this factor is neutral. ¶7 Ultimately , we agree with the administrative judge that the suspension of the appellant’s credentials, his loss of his 5/8 VA appointment , and the agency’s application of the Office of Research & Development Guide 1200.15 provide strong evidence to support the agency’s actions. ID at 11-13. Further, although certain agency officials did have some motive to retaliate, the appellant’s protected disclosures and protected activity did not lead to any negative consequences for the agency and did not implicate any of the officials involved in the personnel actions. Further, the record establishes that those officials acted on the basis of the policy and not reta liatory animus. These factors outweigh any dearth of evidence related to the third Carr factor. Therefore, we agree with the administrative judge’s conclusion that the agency proved by clear and convincing evidence that it would have taken the same actio ns against the appellant even in the absence of his protected disclosure and protected activity. Id. 5 NOTICE OF APPEAL RIG HTS3 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determin es the time limit for seeking such review and the 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 P rotection Board does not provide legal advice 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 s eek review of this 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 y our chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to 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 decisions. As indic ated in the notice, the Board cannot advise which option is most appropriate in any matter . 6 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful 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 7 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at 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 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.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 infor mation about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 4The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information f or the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	GINSBERG_JAY_AT_1221_21_0116_W_1_FINAL_ORDER_1916755.pdf	2022-04-15	null	AT-1221	NP
4,465	https://www.mspb.gov/decisions/nonprecedential/MANUEL_JACQUELINE_R_DA_844E_15_0277_I_1_FINAL_ORDER_1916805.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JACQUELINE R. MANUEL , Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DA-844E -15-0277 -I-1 DATE: April 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jacqueline R. Manuel , Houston, Texas, pro se. Tom Styer , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) that denied her application for a disability retirement annuity under the Federal Employees’ Retirement System (FERS). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or dis tinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error 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). BACKGROUND ¶2 OPM , in its reconsideration dec ision, denied the appellant’s FERS disability retirement application because it concluded that she did not have the required 18 months of creditable service. Initial Appeal File ( IAF), Tab 5 at 4 -5, 123. The record reflects that the appellant was employe d as a “Casual” with the U.S. Postal Service (USPS) in December 1995. Id. at 35-36. Casuals are “part -time, temporary employees used to supplement the regular work force” and are noncareer employees. Id. at 37. The USPS later employed the appellant as a noncareer Rural Carrier Associate (RCA) from August 2005 , to April 2008 . IAF, Tab 5 at 26 -32, 34 , Tab 18 at 5. Her last day in a pay status was August 24, 2007. IAF, Tab 5 at 29. ¶3 The appellant filed an appeal with the Board, challenging OPM’s reconsideration decision. IAF, Tab 1. The administrative judge affirmed OPM’s reconsideration decision, finding that the appellant failed to prove by preponderant evidence that she completed 18 months of creditable civilian service as required to receive a disability retirement under FERS. IAF, Tab 33, Initial 3 Decision (ID) at 4. Specifically, t he administrative judge found that the appellant’s temporary service as a Casual and her intermit tent service as an RCA were not creditable. ID at 4 -8. ¶4 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 filed a reply to the response. PFR File, Tab s 3, 5. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 An appellant bears the burden of persuasion by a preponderance of the evidence in an appeal from OPM’s decision on a voluntary disability retirement application. 5 C.F.R. § 1201.56 (b)(2)(ii); Chavez v. Office of Personnel Management , 6 M.S.P.R. 404 , 417 (1981). To be eligible for a disability retirement annuity under FERS, an employee must have completed at least 18 months of creditable civilian service. 5 U.S.C. § 8451 (a); see 5 C.F.R. § 844.103 (a)(1). We agree with the administrative judge that the appellant’s employment at the USPS does not qualify as c reditable service under 5 C.F.R. part 842, subpart A, and thus, she has failed to show that she meets the eligibility requirements for a disability retirement under FERS. ¶6 On review, the appellant challenges this finding . PFR File, Tab 1. She contends that, while the administrative judge found that she was an intermittent employee and did not work a regular s chedule, she had passed her probationary period, was considered a regular RCA, and was assigned a 5 -day regular route before her accident. In this connection, she claims that she worked the same hours, same shift, and same station as a regular RCA, and th at all career Rural Carrier (RC) employees are first hired on as an RCA. Id. at 3-4. ¶7 As pertinent here, creditable service under FERS includes covered service performed after 1986. 5 C.F .R. § 842.304 (a). The administrative judge correctly found that, for service to be covered, an individual must, among other things, be an “employee, Member, or specifically covered by another provision of law.” ID 4 at 4; 5 C.F.R. § 842.103 (a). The definition of “employee” does not include “any individual excluded under section 8402(c) of this title.” 5 U.S.C. § 8401 (11)(ii). Section 8402(c) (1) provides the following: [OPM] may exclude from the operation of this chapter an employee or group of employees in or under . . . the United States Postal Service . . . whose employment is temporary or intermittent, except an employee w hose employment is part -time career employment (as defined in section 3401(2)). 5 U.S.C. § 8402 (c)(1). “Part -time career employment” is defined by 5 U.S.C. § 3401 (2) as excluding employment on a temporary or intermittent basis. 5 U.S.C. § 3401 (2). Under the authority granted in 5 U.S.C. § 8402 (c)(1), OPM promulgated regulations which exclude appointments limited to 1 year or less and intermittent employees serving under other than career or career conditional appointments . 5 C.F.R. § 842.105 (a). Although the FERS regulations do not define “intermittent employment,” OPM regulat ions governing “Other than Full‑Time Career Employment” define “intermittent e mployment” as “employment without a regularly scheduled tour of duty.” 5 C.F.R. § 340.401 (b). ¶8 Here, the record shows that the appellant was first employed as a Casual from December 9 to December 31, 1995, her service was less than a year, and there is no evidence that this appointment met the definition of a provisional appointment.2 IAF, Tab 5 at 36. Thus, this “temporary” service was excluded from FERS coverage under 5 C.F.R. § 842.105 (a). ¶9 Further, the appellant’s service as an RCA between August 20, 2005, and April 10, 2008, is excluded as “intermittent” employment under 5 C.F.R. § 842.105 (a)(2). As the administrative judge correctly found, the appellant’s employment records with the USPS reflect that her service as an RCA was not a 2 A temporary appointment may be designated as a provisional appointment if, among other conditions, the agency intends to convert the appointee to a nontemporary appointment. 5 C.F.R. § 316.403 . In this case, the appellant’s appointment as a Casual does not indicate any intention by t he USPS to convert her to a non temporary appointment. IAF, Tab 5 at 36 -37. 5 career appointment. Specifically, the appellant’s Notificatio n of Personnel Action forms consistently indicate that her retirement plan was Social Security,3 not FERS, and that she was ineligible for participation in the Thrift Savings Plan, leave, and life insurance benefits . IAF, Tab 5 at 26 -32. Additionally, the appellant’s USPS supervisor testified during the hearing that RCAs are guaranteed work only 1 set day per week, otherwise work as needed , and are not eligible for FERS coverage .4 Hearing C ompact Disk (testimony o f the appellant’s supervisor) . ¶10 Furthermore, while the appellant continues to argue that she is entitled to a FERS annuity because she was assigned to work a regular scheduled tour of duty and because all career RC s are initially hired as RCAs, s he has fail ed to prove by preponderant evidence that the USPS ever converted her to a career RC. Rather, the record reflects that she remained employed in an intermittent RCA position , and her duty assignments varied in the number of hours, work shifts, and even station locations until the USPS separated her. IAF, Tab 5 at 26 -32, Tab 13. ¶11 The appellant also argues on review that the administrative judge was biased and that he failed to provide her with a fair hearing . The Board has long held that, in making a claim of bias or prejudice against an administrative judge, 3 The forms designate her “retirement plan” as “ FICA .” IAF, Tab 5 at 26 -32. 4 The appellant also continues to assert that her service was covered by FERS because she received two forms to submit with her Office of Workers’ Compensation Programs (OWCP) application for benefits in which USPS officials indicated that she had FERS coverage. However, as the administrative judge correctly found, the incorrect information reflected on her OWCP forms does not bind the government to give the appellant benefits or credits to which she is not otherwise entitled. Cf. Dowling v. Office of Personnel Management , 94 M.S.P.R. 127 , ¶ 15 (2003) (finding that evidence that the appellant may have been misinformed or otherwise mistaken about the consequences of his employment -related decisions cannot serve as a basis for finding him entitled to service credit he is otherwise not entitled to receive ) (citing Office of Personnel Management v. Richmond , 496 U.S. 414 , 416, 434 (1990) (finding that the Government cannot be estopped from denying benefits not otherwise permitted by law even if the claimant was denied monetary benefits because of his reliance on the mistaken advice of a Government official)), aff’d , 393 F.3d 1260 (Fed. Cir. 2004). 6 a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). An allegation of bias by an administrative judge must be raised as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist , and must be supported by an affidavit . Lee v. U.S. Postal Service , 48 M.S.P.R. 274 , 28 0-82 (1991). An administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep -seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362‑63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). ¶12 Here, the appellant challenges the administrative judge’s decision not to allow opening statements during the hearing , and she also argues that the administrative judge prevented her from questi oning witnesses concerning issues related to her Office of Workers’ Compensation Programs (OWCP) benefits and her termination from the USPS. PFR File, Tab 1. However, the Board has held that an administrative judge has broad discretionary powers to rule on offers of proof, and to exclude irrelevant or repetitive evidence. Ford v. Department of the Navy , 43 M.S.P.R. 495 , 500 (1990). In this instance , testimony concerning the appellant’s termination and her receipt of OWCP benefits are not relevant to whether she has the minimum of 18 months of creditable service as required to qualify for a disability annuity under FERS. ¶13 Regarding the appellant’s contention that the administrative judge showed bias by not permitting opening statements, the Board has held that opening and closing arguments are committed to the administrative judge’s sound discretion, and the appellant has no t shown that the administrative judge abused his discretion in this respect . Id. Moreover, the appellant has failed to support her claim with an affidavit and we find no evidence in the record to support her bias allegations. Her dissatisfaction with th e administrative judg e’s adjudicatory 7 rulings does not establish bias. PFR File, Tab 1 at 2; see Coufal v. Department of Justice , 98 M.S.P.R. 31 , ¶¶ 10-11 (2004) (finding that an administrative judge’s rulings alone are insufficient to establish bias) . Therefore, we find that the appellant’s claims of bias fail to provide a basis upon which to disturb the initial decision. ¶14 The appellant also asserts that the initial decision included various errors with dates and numbers, i.e., the administrative judge stated that the hearing was on May 13, 2016, when it was on May 12, 2016, that she was terminated on April 10, 2007, when it was April 11 , 2007, and that she submitted four, as opposed to 40, pay stubs. Based upon our review of the record, we find that any erroneous dates or numerals in the initial decision appear to be no more than inadvertent typographical mistakes, which did no t prejudice the appellant’s substantive rights, and thus, do not provide a basis to disturb the initial decision. Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). ¶15 For example, while the administrative judge’s May 4, 2016 summary indicates that the telephonic hearing was held on May 12, 2016, instead of May 13, the record reflects tha t the hearing CD was erroneously date d May 13, 2016, which the administrative judge appears to have relied upon when writing the initial decision. IAF, Tab 22. As to the appellant’s separation date, the administrative judge relied upon a USPS document that reflects that the appellant’s “se paration date” was April 10, 200 7, and that the USPS completed a “Clearance Record” related to her separation on April 11, 2007 . IAF, Tab 20 at 15. Thus, we find no error in the administrative judge’s identif ying April 10, 2007 , as the appellant’s separa tion date . ¶16 Regarding the appellant’s assertion concerning the number of pay stubs she submitted , the record reflects that the administrative judge explicitly found that the four pay stubs which documented her work history prior to an on -the-job motor vehic le accident reflect ed inconsistent work shifts. ID at 7 -8. However, the administrative judge also considered the remaining pay stubs and found that 8 “[a]fter her motor vehicle accident, the appellant’s limited duty assignments varied in their number of ho urs, work shifts, and ev en station locations.” ID at 8; IAF, Tab 13. We agree with the administrative judge’s finding in this regard, and thus, we find no merit to the appellant’s argument. ¶17 Finally, the appellant has submitted documents for the first t ime on review , contending that she just found them in storage in unmarked boxes.5 PFR File, Tab 1 at 6. This submission includes documents relating to the appellant’s prior appeals of her termination and restoration claims, USPS recruiting materials for the RCA positions, and copied pages from the USPS Employee and Labor Relations Manual (ELM) stating the reassignment and reemployment procedures for employees i njured on duty for a “current or former career employee.” PFR File, Tab 1. While the appellant claims she just “found the documents ,” she has failed to show she exercised due diligence in searching for them . Under 5 C.F.R. § 1201.115 , the Board generally will not consider eviden ce submitted for the first time with the petition for review absent such a showing . Avansino v. U.S. Postal Service , 3 M.S.P.R. 211 , 214 (1980) . Nonetheless, even if we were to consider her submission , the documents do not change the outcome of our decision. Indeed, the USPS recruiting materials for the RCA positions, as well as the ELM, support a finding that the appellant’s intermittent servi ce as a n RCA is not creditable for retirement purposes under FER S. ¶18 Accordingly, we find that the appellant has provided no basis upon which to disturb the initial decision. 5 Some of these documents appear to be in the record below . IAF, Tab 19 at 25. 9 NOTICE NOTICE OF APPEAL RIG HTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one 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: 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 appropr iate in any matter. 10 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “G uide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit , you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor war rants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to t he Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. distri ct court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the distr ict court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representati on by a court -appointed lawyer and 11 to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 12 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.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,” 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. 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 Pre sident on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/ Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	MANUEL_JACQUELINE_R_DA_844E_15_0277_I_1_FINAL_ORDER_1916805.pdf	2022-04-15	null	DA-844E	NP
4,466	https://www.mspb.gov/decisions/nonprecedential/SMITH_WISHART_NY_315H_16_0230_I_1_FINAL_ORDER_1916828.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WISHART SMITH, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER NY-315H -16-0230 -I-1 DATE: April 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wishart Smith , Brooklyn, New York, pro se. Kathleen J. Tulloch , Esquire, Brooklyn, New York, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initi al decision, 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 err oneous 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 require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not ava ilable when the record closed. Title 5 of th e Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 The Board’s chief administrative judge found, and t he parties do not dispute, that on October 18, 2015, the agency relied on its Veterans Recruitment Appointment (VRA) authority to appoint the appellant, a preference -eligible veteran, to the position of GS -6 Motor Vehicle Operator, subject to the satisfactory completion of a 2 -year probationary period. Initial Appeal Fi le (IAF), Tab 7, Initial Decision (ID) at 2. It is further undisputed that the agency issued a decision to terminate his employment effective May 13, 2016, for misconduct during his employment. ID at 2; IAF, Tab 6 at 13. He filed an appeal disputing the charges. IAF, Tab 1 at 3. ¶3 The chief administrative judge issued an initial decision dismiss ing the appeal for lack of jurisdiction, finding that, as a probationary employee with less than 1 year of Federal civilian service, the appellant was not an “em ployee” as defined at 5 U.S.C. § 7511 with adverse action appeal rights under 5 U.S.C. chapter 75. ID at 4. He further found that the appellant failed to make a nonfrivolous allegation of a claim within the Board’s jurisdiction pursuant to 5 C.F.R. § 315.806 (b)-(c), i.e., discrimination based on partisan political reasons or marital status, or that he was terminated for reasons a rising pre -appointment without certain required procedures. ID at 4. 3 ¶4 The appellant has filed a petition for review, asserting that he has more than 2 years of military service and thus should satisfy the definition of “employee” in 5 U.S.C. § 7511 . Petition for Review (PFR) File, Tab 1 at 2. He also asserts that, although the underlying misconduct for his termination stemmed from criminal charges, the charges have been dismissed. Id. The agency has opposed the appellant’s petition. PFR File, Tab 3 at 3-4. ¶5 As a preliminary matter, we note that there is conflicting information in the record regarding the nature of the appellant’s appointment. The agency asserted, and the chief administrative jud ge found, that the appellant ’s VRA appointment was to a position in the excepted service. ID at 2. The appellant has not contested this finding or argued otherwise. However, by definition, VRA appointments “are excepted appointments . . . to positions otherwise in the competitive service .” 5 C.F.R. § 307.103 (emphasis added). Further, the Standa rd Form 50 documenting the appellant’s appointment does not refer to VRA appointing authority , but rather indicates that he received an excepted appointment pursuant to 5 C.F.R. § 213.3102 (u), whi ch concerns the appointment of persons with intellectual disabilities, severe physical disabilities, or psychiatric disabilities. IAF, Tab 6 at 16. In addition, the documents in the record are inconsistent as to whether the appellant was required to serv e a 1 -year or 2 -year probationary or trial period. Compare IAF, Tab 6 at 13, with id. at 16. ¶6 We find it unnecessary to resolve these discrepancies to resolve the dispositive jurisdictional question in this appeal. Regardless of which of the foregoing app ointment scenarios applies, the appellant lacks Board appeal rights under 5 U.S.C. chapter 75 or 5 C.F.R. part 315 , subpart H. He cannot satisfy any definition of “employee ” set forth in 5 U.S.C. § 7511 because, at the time of his termination, he had completed only approximately 7 months of his probation and had less than 1 year of Federal civilian service. IAF, Tab 1 at 2; 5 U.S.C. § 7511 (a)(1)(A) -(B). Further, even if he was eligible to appeal based on the 4 limited regulatory grounds set forth in 5 C.F.R . § 315.806 ,2 we agree with the chief administrative judge that the appellant failed to make a nonfrivolous allegation of one of those grounds. ID at 4 -5. ¶7 The appellant’s claim on review that his 2 years of military service should be considered for purposes of establishing jurisdiction , PFR File, Tab 1 at 2, is without merit . The Board has held that military service may not be tacked on to civilian service for the purpose of meeting the definitions of “employee” set forth in 5 U.S.C. § 7511 . Bell v. Department of Homeland Security , 95 M.S.P.R. 580 , ¶¶ 16 -17 (2004). The appellant also claim s on review that his termination is unsubstantiated because the criminal charges stemming from his misconduct have been dismissed. PFR File, Tab 1 at 2. Such a claim is insufficie nt to raise a nonfrivolous allegation of Board jurisdiction because it is irrelevant to the question of whether the appellant has a statutory or regulatory basis for Board jurisdiction. See 5 U.S.C. § 7511 ; 5 C.F.R. §§ 307.105 , 315.806. ¶8 Because the appellant is not an “employee” within the meaning of 5 U.S.C. § 7511 , and he has not alleged any basis for a re gulatory right to review, ID at 4-5; 5 C.F.R. §§ 307.105 , 315.806, we agree with the chief administrative judge that the appellant did not make a nonfrivolous allegation of jurisdiction, and therefore, he has no appeal rights before the Board. 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). 2 The regulatory appeal rights set forth in 5 C.F.R. part 315, subpart H, generally apply to appointees in the competitive service but not the excepted service. However, VRA appointees are afforded these a ppeal rights during their first -year trial periods. 5 C.F.R. §§ 307.105 , 315.806. 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 Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide l egal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 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 ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 6 If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, colo r, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.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 7 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, th e address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices des cribed in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 m ust receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims b y any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on 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 yo u are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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. 9 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	SMITH_WISHART_NY_315H_16_0230_I_1_FINAL_ORDER_1916828.pdf	2022-04-15	null	NY-315H	NP
4,467	https://www.mspb.gov/decisions/nonprecedential/BERTI_DIANE_R_PH_0752_21_0305_I_1_FINAL_ORDER_1916831.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DIANE R. BERTI, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER PH-0752 -21-0305 -I-1 DATE: April 15, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Diane R. Berti , New Castle, Delaware, pro se. Nelda Davis , Esquire, Baltimore, Maryland, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 On November 29, 2021, the administrat ive judge issued an initial decision dismissing the initial appeal as settled. Initial Appeal File (IAF), Tab 12. The initial decision became final on January 3, 2022, when neither party filed a petition for review or requested an extension of time to do so. See 5 C.F.R. § 1201.113 . Eight days later, on January 11, 2022, the agency filed , on behalf 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 both parties , a correction to the settlement agr eement underlying the initial decision. Petition for Review (PFR) File Tab 1.2 For the reasons set forth below, we REOPEN the appeal under 5 C. F.R. § 1201.118 , VACATE the initial decis ion, and DISMISS the appeal as settled. ¶2 The parties submitted a document entitled “ Amendment /Correct ion to Settlement Agreement” signed and dated by the appellant on January 6, 2022 and by the agency on January 11, 2022 . The document corrects an arithmetical error in paragraph 4 of the original fully executed settlement agreement. PFR File, Tab 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 have the agreement entered into the record for enforcement. 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. Of fice of Personnel Management , 91 M.S.P.R. 289 (2002), ¶ 4 , overruled on other grounds by Delorme v. Department of the Inte rior, 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, w e find here 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 enforcement by the Board. See PFR File, Tab 1 ; IAF, Tab 10, at 6. 2 As the initial decision had already be come final by the time the parties notified the Board o f this correction , the submission was considered and docketed as a petition for review of the initial decision. PFR File, Tabs 1 -2. 3 ¶5 Accordingly, we REOPEN the appeal under 5 C.F.R. § 1201.118 , VACATE the initial decision, accept the settlement agreement into the record for enforcement purposes , and DISMISS the appeal as settled “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) . ¶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 R IGHTS If the agency or the appellant has not fully carried out the terms of the agreement, either party may ask the Board to enforce the settlement agreement by promptly filing a petition for enforcement with the office that issued the initial decision on this appeal. The petition should contain specific reasons why the petitioning party believes that the terms of the settlement agreement have not been fully carried out, and should include the dates and results of any communications between the parties. 5 C.F.R. § 1201.182 (a). NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of ava ilable appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall wit hin their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights include d in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that 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 ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 5 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim o f discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment 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: 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 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 under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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, 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 Feder al Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circ uit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interes ted in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appell ants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective w ebsites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BERTI_DIANE_R_PH_0752_21_0305_I_1_FINAL_ORDER_1916831.pdf	2022-04-15	null	PH-0752	NP
4,468	https://www.mspb.gov/decisions/nonprecedential/CARTER_KILEY_A_AT_844E_14_0600_X_1_FINAL_ORDER_1916333.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KILEY A. CARTER, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-844E -14-0600 -X-1 DATE: April 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kiley A. Carter , Athens, Georgia, pro se. Carl E. Hobbs, II , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 This compliance proceeding was initiated by the appellant’s December 12, 2016 petition for enforcement of the Board’s Ja nuary 29, 2016 Order. On March 2, 2017, th e administrative judge issued a compliance initial decision finding the Office of Personnel Management (OPM) not in compliance with the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 January 29, 2 016 Order, and OPM’s noncompliance was referred to the Board for consideration. Carter v. Office of Personnel Management , MSPB Docket No. AT-844E -14-0600 -C-1, Compliance File, Tab 4 , Compliance Initial Decision (CID) . For the reasons discussed below, we now find the agency in c ompliance and DISMISS the petition for enforcement. ¶2 In the March 2, 2017 compliance initial decision, the administrative judge found that OPM was not in compliance with the Board’s January 29, 2016 Order because it failed to submit any response to the acknowledgment order issued for the petition for enforcement. CID at 2-3. As a result, the administrative judge ordered OPM to submit a response demonstrating that it had granted the appellant’s application for disability retiremen t and properly calculated the disability retirement annuity, after factoring in any potential benefits from the Office of W orkers’ Compensation Programs (OWCP ), and which identified an OPM official responsible for ensuring that OPM complied with the Board’s Order. Id. at 3-4. ¶3 On April 26, 2017 , OPM submitted a pleading in response to the administrative judge’s ord er. Carter v. Office of Personnel Management , MSPB Docket No. AT -844E -14-0600 -X-1, Compliance Referral File (CRF), Tab s 3-4. The pleading included evidence that OPM had granted the appellant’s disability retirement application and calculated his disability retirement annuity with an accounting for any potential OWCP benefits he was receiving. Id. While the calculations in the pleading regarding the appellant’s annu ity appeared to be correct, t he pleading did not explain the average salary used as the basis for OPM ’s calculations. Id. The appellant did not file any reply to OPM ’s pleading, but on August 11, 2017, the Board issued an order requiring OPM to explain t he basis for the average salary utilized to calculate the appellant’s benefits. CRF, Tab 5. ¶4 On August 22, 2017, OPM submitted a pleading explaining the basis for the average salary it utilized to calculate the appellant’s benefits. CRF, Tab 6. The 3 plead ing included a detailed accounting of the appellant’s salary, along with evidence supporting its calculation . Id. The appellant also did not file a response to this submission . However, our review of OPM ’s calculations regarding the appellant’s salary a nd his disability annuity reveals them to be correct. Id. Therefore, based on OPM ’s submission, we find that OPM is now in full compliance with the Board’s January 29, 2016 Order. ¶5 Accordingly, we find that OPM is 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(b) ( 5 C.F.R. § 1201.183 (b)). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does n ot provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this fin al decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 about whether a particular forum is the appropriate one to review your case, you should contact that for um for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you m ust submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 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 representa tive in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 6 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 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. Contact information for the courts of appeals can be 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_KILEY_A_AT_844E_14_0600_X_1_FINAL_ORDER_1916333.pdf	2022-04-14	null	AT-844E	NP
4,469	https://www.mspb.gov/decisions/nonprecedential/BRUCE_BRANDON_SINCLAIR_DC_0752_21_0022_I_2_REMAND_ORDER_1916357.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD BRANDON SINCLAIR BRU CE, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency. DOCKET NUMBER DC-0752 -21-0022 -I-2 DATE: April 14, 2022 THIS ORDER IS NONPRECEDENTIAL1 Brandon Sinclair Bruce , San Diego, California, pro se. Sara M. Klayton , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member REMAND ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his constructive suspension appeal as moot . For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE 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). decision , and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2 The parties to this appeal neglected to submit many of the primary documents that would normally be found in an ably -prepared case file. In order to determine what transpired, we have relied largely on copies of the equal employ ment opportunity (EEO) and arbitration decisions that the parties submitted below. Nevertheless, the material facts do not appear to be in dispute. ¶3 On January 26, 2014, the appellant was appointed to the position of Regulatory Counsel in the agency’s Center of Tobacco Products. Bruce v. Department of Health & Human Services , MSPB Docket No. DC -0752 -21-0022 - I-2 (RAF ), Tab 8 at 93. His official duty station was at the agen cy’s White Oak Campus in Silver Spring, Maryland. RAF , Tab 10 at 12, 246, 282. The appellant has various medical conditions . Bruce v. Department of Health & Human Services , MSPB Docket No. DC -0752 -21-0022 -I-1 (IAF), Tab 1 at 16. He requested accommodat ions prior to the date of his appointment and has been receiving some form of accommodation ever since. Id. at 75. ¶4 Over time, developments in the appellant’s medical conditions required some changes in his accommodations, most notably for full time tele work from his home in the Washington, D.C. area, beginning in June 2016. Id.; RAF , Tab 8 at 157. For health reasons, in or around August 2017, the appellant moved from the Washington, D.C. area to San Diego, California. RAF , Tab 8 at 133, Tab 12 at 32. The agency approved the appellant’s request to telework full time from his new home in San Diego for a period of 6 months, beginning November 12, 2017. RAF , Tab 9 at 168. The agency informed the appellant that at the end of that period, on May 14, 2018, he would need to return to duty at the White Oak Campus. Id. ¶5 On April 25, 2018, the appellant contacted the agency and requested that his temporary arrangement of teleworking from San Diego be made permanent. IAF, Tab 1 at 36. On May 10, 2018, the agen cy denied the appellant’s request and ordered him to return to duty at the White Oak Campus according to the terms of the telework agreement. Id. at 37. The appellant did not report for duty as directed but instead attempted to cover his absence with var ious forms of leave. Id. at 38 -40. Nevertheless, the appellant’s leave requests for May 22, 23, and 25, 2018, were denied, and he was carried in absence without leave (AWOL) status on those dates. Id. at 26, 39. Soon thereafter, the appellant exhausted his leave balance, and he began a lengthy period of AWOL, beginning June 5, 2018. Id. at 26, 39 -40. On July 11, 2018, the agency proposed the appellant’s removal based on charges of AWOL, failure to follow leave -requesting procedures, and failure to fol low instructions. Id. at 17. The appellant was removed effective December 1, 2018. Id. at 42. ¶6 Meanwhile, the appellant elected to contest his removal through negotiated grievance procedures, and he filed multiple EEO complaints about various other matte rs, including the agency’s denial of his request for accommodation through telework from San Diego. In July 2019, an Equal Employment Opportunity Commission (EEOC) administrative judge found that, in light of the permanent nature of the appellant’s disabi lity, the agency committed disability discrimination by granting his telework request on less than a 2 -year basis. Id. at 27, 76. On March 5, 2020, an arbitrator, relying in part on the EEOC administrative judge’s finding of discrimination, issued a part ial opinion and award, mitigating the appellant’s removal to a 5 -day suspension.2 Id. at 74 -79. ¶7 On August 24, 2020, an EEOC administrative judge issued a prehearing decision on three of the appellant’s other EEO complaints. IAF, Tab 1 at 24 -72. Three of the claims encompassed in these complaints are directly relevant to the 2 The second partial award, dated July 20, 2020, concerned additional status quo ante relief related specifically to the removal. IAF, Tab 1 at 80 -82. issues now before the Board. Id. at 24 -27. Specifically, the appellant claimed that the agency discriminated against him by (1) denying his requests for leave for May 22, 23, and 25, 2018, and carrying him in AWOL status for those dates, (2) subjecting him to a “ ‘de facto’ indefinite suspension,” when it placed him in a nonduty status without due process beginning o n May 14, 2018 , and (3) carrying him in AWOL status from June 5, 2018, forward. IAF, Tab 1 at 26 -27; RAF, Tab 8 at 157 , Tab 7 at 23, 38-40, Tab 10 at 10 -12. ¶8 On the first issue, the EEOC administrative judge found that the appellant was properly considered AWOL on May 22, 23, and 25, 2018, and she granted summary judg ment in favor of the agency. IAF, Tab 1 at 56 -58. On the second issue, the EEOC administrative judge found that the appellant’s indefinite suspension claim amounted to a mixed -case complaint not properly before her at that stage of the proceedings, and s he remanded the claim to the agency to issue a new decision with Board appeal rights. Id. at 47 -48. On the third issue, the EEOC administrative judge granted summary judgment in favor of the appellant, finding that the agency discriminated against him ba sed on disability when it carried him in AWOL status beginning June 5, 2018. Id. at 68 -71. After a hearing on some remaining claims, the EEOC administrative judge issued a bench decision, ordering among other things that the agency award the appellant pa y and benefits for the period between May 21, 2018, and December 1, 2018, as well as $60,000 in compensatory damages due to the physical and emotional consequences of the agency’s failure to accommodate him during that period.3 RAF , Tab 5 at 60 -73. ¶9 As for the indefinite suspension claim on remand to the agency, the agency identified the claim accepted for adjudication as whether it discriminated against 3 The EEOC administrative judge explicitly excl uded relief for May 22, 23, and 25, 2018, because she had already found that the appellant was properly considered AWOL on those dates. RAF , Tab 5 at 60. She also excluded relief for a period equivalent to the 5 -day suspension to which the arbitrator had mitigated the removal. Id. the appellant based on race, sex, or disability, or retaliated against him for protected activity when i t “‘unlawfully’ forced him to serve a ‘De Facto’ indefinite suspension by classifying him in a Non -Duty status, without first providing him ‘due process’ or an explanation for the Agency’s actions.” IAF, Tab 1 at 9 -10. On October 8, 2020, the agency issu ed a final decision finding no discrimination and notifying the appellant of Board appeal rights. Id. at 9 -22. The appellant timely appealed tha t final agency decision to the Board and requested a hearing. Id. at 1 -8; see 5 C.F.R. § 1201.154 (b). ¶10 The administrative judge conducted a status conference, during which the appellant clarified “that he was appealing his placement on [AWOL] for an extended period of time, which he alleged was tantamount to a constructive suspension.” RAF , Tab 6 at 1. The agency raised the issue of mootness, arguing that, in prior EEO and arbitration proceedings, the appellant had already obtained all the relief that he could receive if he prevailed in his Boa rd appeal. Id. at 1 -2. The administrative judge provided the parties notice of the mootness issue, of the appellant’s jurisdictional burden in his constructive suspension claim, and of issues of res judicata and collateral estoppel that may be implicated by the prior related proceedings. Id. at 1 -7. She ordered the appellant to file evidence and argument to show that the appeal is within the Board’s jurisdiction. Id. at 7. ¶11 After the parties responded, the administrative judge issued an initial decision dismissing the appeal as moot. RAF , Tabs 7 -14, Tab 16, Initial Decision (ID). She found that the agency returned the appellant to the status quo ante with respect to all of the AWOL dates at issue. ID at 6. She further found that the agency had restor ed all of the leave that the appellant had expended in order to avoid AWOL after May 21, 2018, and that the Board lacks the authority to restore leave used prior to that date. ID at 7 -8. The administrative judge also found that the Board lacks the author ity to grant relief for the tax liability that the appellant incurred because of the back pay awards, to order compensatory damages in addition to those ordered by the EEOC, to grant any injunctive or forward -looking relief, or to adjudicate the appellant’ s due process claim absent an otherwise appealable action. ID at 8 -11. ¶12 The appellant has filed a petition for review, contesting some procedural matters and arguing that the Board should allow an exception to the mootness doctrine due to the agency’s ongo ing acts of discrimination. Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR File, Tab 3. ANALYSIS ¶13 Mootness can arise at any stage of litigation, and an appeal will be dismissed as moot where the appellant has obtained all of the relief he could have obtained had he prevailed before the Board, or where there is no further relief the Board can grant. Uhlig v. Department of Justice , 83 M.S.P.R. 29 , ¶ 7 (1999). In order to render an appeal moot, an agency must prove that it completely rescinded its action, thereby returning the appellant to the status quo ante and not leaving him in a worse position because of the rescission than he would have been in if the matter had been adjudicated. Fernandez v. Department of Justice , 105 M.S.P.R. 443 , ¶ 5 (2007). ¶14 This appeal concerns an alleged constructive suspension allegedly beginning on May 14, 2018, which preceded the appellant’s removal.4 IAF, Tab 1 at 9-23; RAF , Tab 6 at 1 -2, Tab 7 at 4. However, before determining whether the appellant’s constructive suspension claim is moot, we must first determine the dates that his claim encompasses. In the EEO proceedings, the agency construed the appellant’ s claim as encompassing only the periods during 4 The Board has jurisdiction to review an arbitrator’s final decision under 5 U.S.C. § 7121 (d) when the subject matter of the grievance is one over which the Board has jurisdiction and the appellant alleged EEO discrimination in connection with the underlying action. Brookens v. Department of Labor , 120 M.S.P.R. 678 , ¶ 4 (2014). The appellant here has not sought additional relief for his removal in the context of the instant appeal. Nor has he expressed dissatisfaction with the decision of the arbitrator . Therefore, we have not interpreted his pleadings below or on review as requesting review of the arbitration decision under 5 U.S.C. § 7121 (d). which the agency had previously carried him in AWOL status. IAF, Tab 1 at 10 n.2. In so doing, the agency disregarded the explicit language of the accepted claim , i.e. , that the agency had constructively su spended the appellant “by classifying him in a Non -Duty status .” Id. at 10, 27. The agency explained that “[w]hile the claim is framed as non -duty status, the proper characterization per the proposed removal is [AWOL]. As such, all subsequent references in this final agency decision will be to non -duty status, specifically, AWOL.” Id. at 10 n.2. We are not satisfied with this explanation. ¶15 A “suspension” is the temporary placement of an employee in a nonpay, nonduty status . Engler v. Department of the Army , 121 M.S.P.R. 547 , ¶ 6 (2014). It is well settled that a constructive suspension may encompass not only unpaid absenc es but periods of paid leave that an employee was forced to take due to an improper agency action. E.g., Bean v. U.S. Postal Service , 120 M.S.P.R. 397 , ¶ 14 (201 3); Kaminsky v. Department of Health & Human Services , 13 M.S.P.R. 397 , 398-99 (1982) . We find insufficient ba sis to restrict the appellant’s constructive suspension claim to periods of only unpaid, unapproved absences. Nor do we believe his claim is limited to the absences that served as the basis of his proposed removal. ¶16 Indeed, the appellant has reconfirmed in this Board appeal that his constructive suspension claim encompasses not only the periods in which he was classified as AWOL, but the entire “six (6) months and seventeen (17) days” of nonduty status leading up to t he removal, i.e., the entire period during which he was in nonduty status, beginning with the expiration of the telework agreement on May 14, 2018. RAF , Tab 7 at 4, 23, 28. He explained that, in addition to the periods of AWOL, he is seeking relief for t he agency forcing him to use leave that he did not intend to use, beginning April 25, 2018. Id. at 8, 21 -22, 26. ¶17 With those parameters in mind, we proceed first to the issue of whether the appellant made a nonfrivolous allegation of jurisdiction over a constructive suspension. To establish Board jurisdiction over a constructive suspension appeal, an appellant must s how that (1) he lacked any meaningful choice but to absent himself from work, and (2) it was the agency’s wrongful actions that deprived him of that choice. Bean , 120 M.S.P.R. 397 , ¶¶ 8, 13. The appellant must also meet the other requirements of chapter 75 jurisdiction which , as relevant here , are that he was an “employee” within the meaning of 5 U.S.C. § 7511 (a)(1), and his suspension was for more than 14 days. Id., ¶ 8; see 5 U.S.C. § 7512 (2). ¶18 In this case, it is undisputed that, during the time of the claimed constructive suspension, the appellant was an “employee” under 5 U.S.C. § 7511 (a)(1)(A). IAF, Tab 1. It is also undisputed that the appellant was continuously absent from work from May 14, 2018 , until his removal 6½ months later. RAF , Tab 14 at 279 -93. We further find that the appellant has made a nonfrivolous allegation that he lacked a meaningful choice in this lengthy absence. Specifically, after the agency discontinued his ability to telework, the appellan t was faced with the choice of being absent from work or returning to duty at the White Oak Campus, which he alleges would have violated his medical restrictions. IAF, Tab 1 at 37; see Bean , 120 M.S.P.R. 39 7, ¶¶ 13-14. We also find a nonfrivolous allegation that the appellant was deprived of his choice through a wrongful agency action because two different EEOC administrative judge s found that the agency ’s refusal to allow the appellant to telework after May 14, 2018 , was discriminatory and a violation of the Rehabilitation Act of 1973. IAF, Tab 1 at 27, 68-71, 76. For these reasons, we find that the appellant has made nonfrivolous allegations of Board jurisdiction over his constructive suspension appeal. ¶19 We now turn to the issue of whether the appellant’s claim is moot. For the reasons explained in the initial decision, we agree with the administrative judge that the appellant has already received full relief for the period that he was carried in AWOL sta tus, from June 5 to December 1, 2018, including status quo ante relief and compensatory damages arising from his claim of discrimination. ID at 6 -7, 9-10. We also find that, to the extent that the appellant did not receive status quo ante relief for the other AWOL dates of May 22, 23, and 25, 2018, he is precluded from litigating that issue before the Board. The EEOC, a tribunal of competent jurisdiction, has already rendered a final judgment on the merits, finding that the appellant was properly carried in AWOL status on those dates.5 IAF, Tab 1 at 56-58; see Carson v. Department of Energy , 398 F.3d 1369 , 1375 (Fed. Cir. 2005) (setting forth the elements of res judicata). Finally, the administrative judge found the agency already restored all of the leave that the appellant took beginning May 21, 2018, to avoid AWOL. ID at 8. However, although the EEOC ordered the agency to award the appellant “back pay from the time beginning May 21, 2018,” RAF , Tab 5 at 60, the agency’s records appear to reflect that it did not restore the 10 hours of sick leave that the appellant took on May 24, 2018,6 RAF , Tab 14 at 278 -82. Nor is there any indication that the appellant has been compensated for the 40 hours of annual leave that he took at the beginning of the alleged constructive suspension period, between May 14 and 17, 2018. Id. at 278 -79. ¶20 For these reasons, we find that the appeal is not moot. If the appellant were to prevail on the merits of his constructive suspension claim, the Board could provide him additional relief by ordering the agency to restore the 10 hours of sick leave and 40 hours of annual leave that the appellant took between May 14 and 24, 2018. See Borden v. Department of Justice , 59 M.S.P.R. 353 , 357 (1993) ; Clements v. Department of the Navy , 21 M.S.P.R. 275 , 277 & n.2 (1984) . Because the appellant has otherwise made a nonfrivolous allegation of Board 5 Regardless of what was required by the EEOC administrative judge’s orders, the agency changed the appellant’s status on May 22, 23, and 25, 2018, from AWOL to “excused absence,” but it is not clear whether the agency afforded the appellant back pay and be nefits for those dates. ID at 6 & n.4 ; RAF , Tab 14 at 279. In any event, we find that the matter is immaterial to the issues in this appeal. 6 During the relevant time period, the appellant worked a compressed schedule of 10 hours per day, 4 days per week. RAF , Tab 9 at 168. jurisdiction over his con structive suspension claim, he is entitled to the jurisdictional hearing that he requested. See Moore v. U.S. Postal Service , 117 M.S.P.R. 84 , ¶¶ 11-14 (2011) ; Holden v. U.S. Postal Service , 78 M.S.P.R. 420, 423 (1998) . ORDER ¶21 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	BRUCE_BRANDON_SINCLAIR_DC_0752_21_0022_I_2_REMAND_ORDER_1916357.pdf	2022-04-14	null	DC-0752	NP
4,470	https://www.mspb.gov/decisions/nonprecedential/CASH_MARCUS_ALEX_AT_844E_16_0508_I_1_FINAL_ORDER_1916372.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MARCUS ALEX CASH, Appellant, v. CENTRAL INTELLIGENCE AGENCY , Agency. DOCKET NUMBER AT-844E -16-0508 -I-1 DATE: April 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Marcus Alex Cash , Watkinsville, Georgia, pro se. Rebecca Tucker , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for revie w of the initial decision, which affirmed the agency’s final decision denying h is application for disability retirement under the Federal Employees’ Retirement System (FERS) . Generally, we grant petitions such as this one only in the following circumstanc es: the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulin gs 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 a vailable 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 the Final Order to find that the Board’s lacks jurisdiction to consider the appellant’s claim of disability discrimination, we AFFIRM the initial decision. BACKGROUND ¶2 During the time of the matters at issue in this appeal, the appellant was a GS-13 Tec hnical Intelligence Of ficer assigned to the agency’s Washington Metropolitan Area . As an agency System Engineer, the appellant provided technical support on systems used by the agency to support its mission, including meeting with others about system prob lems, assessing system capabilities, building and troubleshooting systems, and occasionally depl oying them. Initial Appeal File (IAF), Tab 35 at 16 -22.2 On March 5, 2013, he requested a “hardship waiver for retirement separation” unless the agency could provide him part -time employment in Georgia where his family resided so that he could address a number of serious family and personal issues. IAF, Tab 186. Beginning on June 13, 2014, the agency carried the appellant on leave without pay (LWOP) until Oct ober 6, 2 014, whe n he submitted a letter of resi gnation wherein he stated 2 This document, like many in the record, has been redacted of classified information . 3 that he was “under a physician’s care for chronic panic disorder, episcleritis, depression, PTSD [post -traumatic stress disorder] , et al.” IAF, Tab 3 3 at 12. On October 24, 2014, t he appellant completed an application for disability retirement under FERS , describing his disabling conditions as “PTSD, panic disorder, anxiety, severe episcleritis, extreme sensitivity to environmental heat, claustrophobia, depression/grief.” IAF, Tab 34 at 5 -17. He stated that these conditions and medications he took to address them affected his ability to sleep and concentrate and “induced ambivalence,” and that claustrophobia (panic attacks) made it difficult/risky for him to perform his duties in certain settings. Id. at 5. The appellant’s application was reviewed by the agency’s Board of Medical Examiners (BME) , which recommended that it be denied on the basis that the appellant did not show that he became disabled becau se of one or more medical conditions that resulted in a deficiency in service or that were incompatible with either useful and efficient service or retention in his position and that he became disabled with one or more such medical conditions that had a causal relat ionship to a service deficiency and were expected to continue for at least 1 year from the date he applied for disability retirement .3 IAF, Tab 36 at 5. The appellant appealed that decision to the Director, Office of Personnel Resources , The Ce ntral Intelligence Agency ( CIA), id. at 7-18, wh o denied hi s request for reconsideration, IAF, Tab 40 at 29. ¶3 On appeal to MSPB , the appellant alleged that he was entitled to disability retirement because he was psychiatrically disabled by work -related trauma, his 3 Title 50, U.S. Code, chapter 38, authorizes the Central Intelligence Agency (CIA) Director to administer various aspects of retirement for CIA employees, including participation in the FERS. 50 U.S. C. §§ 2011 (c), 2155(a). The CIA Director is required to prescribe regulations regarding applying FERS to CIA employees, in consultation with the Director of the Office of Personnel Management. 50 U.S.C. § 2156 . Regarding FERS, agency employees are subject to 5 U.S.C. chapter 84, 50 U.S.C. § 2151 (a), and certain CIA employees, like the appellant, have recourse to the Board from an unf avorable agency retirement decision. 5 U.S.C. § 8461 (e); 50 U.S.C. § 2155 ; IAF, Tab 15 at 7, Tab 24 at 7, 20, Tab 33 at 10. 4 performance and attendance had gradually dropped while his visits to physicians increased dramatically as di d his medication regimen, and his conditions and pharmacotherapy and side effects are all inconsistent with useful and efficient service. IAF, Tab 10 at 4. He further alleged that his conditions have existed for 7 years, that accommodations, if they exist, would be inconsistent with useful and efficient service at the agency, and that he was not offered reassignment. Id. at 5. He requeste d a hearing. IAF, Tab 1 at 2. The administrative judge construed the appellant ’s claim to include that, in denying him benefits, the agency discriminat ed against him based on his disability. IAF, Tabs 137, 165 . ¶4 Following a hearing, IAF, Tab 187, the adm inistrative judge issued an initial decision in which he affirme d the agency’s final decision, IAF, Tab 190, Initial Decision (ID) at 1, 17. He found that there was no dispute that the appellant had completed at least 18 months of civilian service credita ble under FERS, that he did no t decline a reasonable offer of reassignment, and that his application was timely filed. 5 U.S.C. § 8451 (a); 5 C.F.R. § 844.103 (a); ID at 6. The administrative judge further found that to address the remaining criteria,4 the probative value of all evidence submitted must be considered , taking into account objective clinical findings, diagnoses and medical opinions, subjective evidence of pain and disability, and all evidence relating to the effect of the appellant’s conditions on his ability to perform in the position last occupied. ID at 6. The administrative judge then presumed, without deciding, that the appellant’s stated 4Those remaining criteria include a showing that the applicant, while employed in a position subject to FERS, became disabled because of a medical condition resulting in a deficiency in performance, conduct, or attendance, or, if there is no such deficiency , the disabling condition is incompatible with either useful and efficient service or retention in the position; the disabling medical condition is expected to continue for at least 1 year from the date the application was filed; and accommodating the disa bling medical condition in the position held is unreasonable. Henderson v. Office of Personnel Management , 109 M.S.P.R. 529 , ¶ 8 (2008). 5 conditions, with the exception of episcleritis,5 are disabling conditions incompatible with either useful and efficient service or retention in the position and are expected to continue for at least 1 year from the date that the appellant filed his application for disability retirement , but that the appellant was not entitled to benefits because the agency presented compelling evidence that it could have accommoda ted him. ID at 6 -12. Finally, the administrative judge found that the appellant failed to prove that the agency discriminated against him on the basis of any disability when it denied his application for disability retirement benefits. ID at 12 -17. ¶5 The appellant has filed a petition for review, Petition for Review (PFR) File, Tab 1, and th e agency has filed a response, PFR File, Tab 22. The appellant requested additional time in which to reply to the agency’s response, PFR File, Tab 24, and the Acting C lerk of the Bo ard afforded him an extension, PFR File, Tab 25. The appellant made a timely submission entitled “Supplemental and Final PFR,” which the Board placed into the record without comment as to the propriety of its contents under 5 C.F.R. § 1201.114 .6 PFR File, Tab 27. Based on our review of the appellant’s submission, we have considered only that portion which is, in fact, a reply to the agency’s response to his petition for r eview in that it consists of a copy of the agency’s response on which the appellant has inserted his own comments, assertions, and arguments. PFR File, Tab 28 at 28 -33. We have not considered the remainder of the documents in the submission because they do not address the factual and legal issues raised by the agency in it s 5The administrative judge found that the appellant did not establish that this condition, “red eye,” is disabling because, while uncomfortable, he did not show why it would render him unable to perform useful and efficient service or make retention i n his Technical Intelligence Officer position untenable. ID at 6 n.9. 6Based on its determination that the appellant’s pleading contained classified information, the agency submitted a copy of the pleading that was redacted to the UNCLASSIFIED level, PFR File, Tab 28, and it was placed in the official record in lieu of the appellant’s original submission, PFR File, Tab 29. 6 response to the appellant’s petition for review .7 Id. at 35 -58; 5 C.F.R. § 1201.114 (a)(4). ANALYSIS The appellan t did not show that he is entitled to disability retirement. ¶6 On review, the appellant challenges the administrative judge’s reliance on the testimony of the agency psychiatrist who reviewed the appellant’s application for retirement for the BME. PFR File, Tab 1 at 4. The appellant argues that he was never examined by that psychiatrist , and that the administrative judge abused his discretion in not giving credence to the evidence the appellant submitted from his own treating physicians. Id.; PFR File, Tab 28 at 32. ¶7 As noted, the administrative judge presumed, without deciding, that all but one of the appellant’s asserted conditions are disabling medical conditions that are incompatible with either useful and efficient service or retention in the position and that these conditions are expected to continue for at least 1 yea r from the date the appellant filed his application for disability retirement. ID at 6 -7. Therefore, to the extent the administrative judge did not consider the appellant’s medical evi dence regarding these issues, the appellant has not shown any prejudice to his substantive rights. See Panter v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984). Although the administrative judge did rely heavily on the testimony of the agency’s psychiatrist on the dispos itive issue in this case, accommodation, such reliance was appropriate inasmuch as the witness provided unchallenged testimony that hi s office is involved with accommodating medical 7The appellant has included in this submission an April 12, 2017 notice from the Social Security Administration (SSA) stating that a “f ully favorable” decision has been made on his claim. PFR File, Tab 28 at 37. The determination does not, however, identify the condition or conditions that were the basis for SSA’s decision or explain why the appellant was determined to be disabled, and therefore the decision is not significant or useful evidence is deciding this appeal. As such, the notice of SSA’s decision, while new, is not material evidence. Confer v. Office of Personnel Management , 111 M.S.P.R. 419 , ¶ 6 (2009). Moreover, as noted, the administrative judge presumed, without finding, that all but one of the appellant’s conditions rendered him disabled. 7 conditions of agency employees. ID at 9 -12; Hearing Compact Disc (HCD) (testimony of agency psychiatrist ). The appellant has not shown that any of his witnesses presented relevant and material evidence on this issue, but, even if they did, t he administrative judge’ s failure to mention all of the evidence of record does not mea n that he did not consider it in reaching his decision. Marques v. Department of Health & Human Services , 22 M.S.P.R. 129 , 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). We find , therefore, that the appellant has not shown that the administrative judge abused his discretion in this regard. 5 C.F.R. § 1201.41 (b)(3). ¶8 The appellant also challenges on review the administrative judge’s finding that the appellant did not establish that accommodati ng his disabling condition would be unreasonable . PFR File, Tab 1 at 4-5. In the Certification of Reassignment and Acc ommodation Efforts completed shortly after the appellant filed his application, the agency checked the box which said “No, the employee’s condition does not appear to require accommodation. Medical information presented to the agency does not document a d isabling condition.” IAF, Tab 35 at 31. Noting the administrative judge’s contrary presumption, however, the Board has found that, under FERS, an individual is not eligible for disability retirement benefits if there is a reasonable accommodation for the disabling condition in the position held. 5 U.S.C. § 8451 (a); Gooden v. Office of Personnel Management , 471 F.3d 1275 , 1279 (Fed. Cir. 2006); 5 C.F.R. § 844.103 (a)(4). Accommodation means a reasonable adjustment made to an employee’s job or work environment that enable s the employee to perform the duties of the position , and may include modifying the worksite, adjusting the work schedule, and restructuring the job . 5 C.F.R. § 844.102 . 8 ¶9 The administrative judge found that the appellant never requested an accommodation that would allow him to keep working.8 ID at 11 . The appellant does not , on review, specifically challenge that finding, except to describe the agency “culture” as one in whi ch employees do not admit sickness or ask for accommodations. PFR File, Tab 1 at 4 -5. In any event, the administrative judge found compelling evidence that the agency would have attempted to accommodate the appellant, had he been forthcoming about his co nditions and requested accommodation prior to resigning. ID at 7-12; HCD ( testimony of the appellant’s supervisor and agency psychiatrist ). Specifically, the agency presented evidence that the appellant was not required to work in confined spaces, but ra ther in a “lab -based” environment, and that his work schedule could have been adjusted to account for his medical conditions or medication s he took to address them.9 HCD ( testimony of the appellant’s supervisor ). The agency also provided evidence that , in some cases, individuals with PTSD who are undergoing “system appropriate treatment” can be accommodated following engagement with their healthcare provider s, and that for those who could not, the agency would attempt to reassign them to positions in whi ch th ey could perform effectively. HCD (testimony of the agency psychiatrist ). In addition, the agency explained that , regarding the appellant’s heat sensitivity, agoraphobia, and claustrophobia, a variety of accommodations can be, and have been, used to address such issues , and that, a s for his panic disorder, the agency has 8Both part ies acknowledge, however, that, in late 2012, the appellant requested that the agency upgrade his air travel from economy to business class because he had been diagnosed with panic disorder, including claustrophobia, and that the agency approved the reques t. IAF, Tab 58 . 9On review, the appellant questions why, if the agency was willing to accommodate him, as it has indicated, he was not permitted to work at his home in Georgia. PFR File, Tab 1 at 5. The agency presented evidence, however, that, due to t he classified nature of the agency’s work, telework was not permitted. HCD (testimony of the appellant’s supervisor). 9 accommodated this condition in the past , albeit in “highly personalized” ways. Id.10 ¶10 In sum, the appellant has not disputed the agency’s evidence that it could have accommodated his medical conditions, and he therefore failed to prove that it would have been unreasonable for the agency to accommodate such conditions. The Board lacks jurisd iction to consider the appellant ’s claim that the agency discriminated against him based on his di sability. ¶11 The administrative judge initially determined that the Board lacks jurisdiction to consider such a claim in a disability retirement appeal, IAF, Tab 75, but , relying on the Board’s decision in Jordan v. Office of Personnel Management , 108 M.S.P.R. 119 , ¶¶ 8-9 (2008), he subsequently reversed that ruling, IAF, Tab 165, allowing the parties to present evidence on the claim, and even tually denying it as unproven, ID at 12 -17. ¶12 The issue before the Board in t his case is the agency ’s denying the appellant’s application fo r disability retirement . IAF, Tab 36 at 5. As we have found regarding FERS, agency employees are subject to 5 U.S.C. chapter 84, 50 U.S.C. § 2151 (a), and certain CIA employees, like the appellan t, can appeal an adverse retirement decision to the Board. 5 U.S.C. § 8461 ; 50 U.S.C. §§ 2155 (b), 2156(a). Therefore, the Board has jur isdiction to consider the appellant’s denial of benefits in accordance with 5 U.S.C. § 7701 . 5 U.S.C. § 8461 (e). Pursuant to section 770 1(c), an agency action cannot be sustained by the Board if , inter alia, the appellant shows that the agency based its action on a prohibited personnel practice described in 5 U.S.C. § 2302 (b). 5 U.S.C. § 7701 (c)(2)(B). Here, the appellant contends that the agency’s decision denying him retirement benefits was 10The appellant argues on review that the agency did not grant his request for further medical treatment, specifically, further “exposure therapy” as recommended by the agency -contracted licensed social worker he saw before he went on LWOP and before he relocated to Georgia. PFR File, Tab 28 at 30. Even if true, such a claim does not advance the appellant’s position that there is no reason able accommodation for his condition and that he is therefore entitled to disability retirement . 10 based on disability discrimination, a prohibited personnel practice under 5 U.S.C. § 2302 (b)(1)(D). ¶13 In the Jordan case, the Office of Personnel Management was the respondent agenc y. However, th e CIA is the respondent agenc y in this appeal and, because it is specifically e xcluded from coverage under 5 U.S.C. § 2302 , the reference to section 2302(b) in section 7701(c) is inapplicable to CIA employees. 5 U.S.C. § 2302 (a)(2)(C)(ii) . Therefore, the appellant may not bring his claim of disability discrimination as an affirmative defense. Cook v. Central Intelligence Agency , 58 M.S.P.R. 542, 543 (1993); cf. Van Lancker v. Department of Justice , 119 M.S.P.R. 514, ¶ 10 (2013) (finding that the Board la cks jurisdiction to consider a covered Federal Bureau of Investigation (FBI) employee’s affirmative defense of retaliation for whistleblowing in an appeal of his removal for unacceptable performance; FBI was specifically excluded from coverage under prohibited personnel practice statute). The administrative judge did not abuse his d iscretion regarding his hearing‑related rulings. ¶14 On review, the appellant argues that the administrative judge denied “many” of his motions as untimely and denied “many ” of his proposed witnesses. PFR File, Tab 1 at 4. The appellant also contends that the record did not include “many ” of the documents he requested during discovery. Id. A petition for review must contain s ufficient specificity to enable the Board to ascertain whether there is a serious evidentiary challenge justifying a complete review of the record. Herndon v. Department of the Navy , 97 M.S.P.R. 609, ¶ 7 (2004) , review dismissed , 125 F. App’x 289 (Fed. Cir. 2005) . Because the appellant’s arguments as to t he administrative judge’s rulings on discovery and un specified motions wholly lack specificity, we are unable to ascertain whether he has made a serious evidentiary challenge and find that a complete review of the record is not justified. We note that the administrative judge den ied 44 of the appellant’s 51 proposed witnesses, but did provide reasons for his rulings. IAF, Tab 171. 11 The administrative judge afforded the parties 7 days from the date of the Order and Summary of Telephonic Prehearing Conferen ce in which to note any exceptions. Id. Although the appellant stated that he took “grave exception to the denial of many of [his] key witnesses,” he agreed to “drop them from [his] proffer list, IAF, Tab 72 , thereby failing to preserve the issue for rev iew, see Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 9 (2010). In sum, the appellant has not shown that the administrative judge erred regarding these rulings or otherwise abused his discretion because the appellant has not shown that his substantive rights were prejudiced. Lee v. Environmental Protection Agency , 115 M.S.P.R. 533 , ¶ 7 (2010). ¶15 The appellant also argues on review that the administrative judge refused to provide him “court -appointed counsel.” PFR File, Tab 1 at 4. Below, t he appe llant requested the appointment of “cleared counsel. ” IAF, Tab 56 . The administrative judge denied the motion, stating that he was un aware of any authority for the expenditure of Government funds in such a manner , and that the appellant had pointed to none . IAF, Tab 75. The appellant sought assistance from the Georgia Bar , IAF, Tab 76 , although he ultimately appeared before the Board pro se . An appellant has the right to be represented by an attorney or other representative. 5 U.S.C. § 7701 (a)(2). However, there is no statut ory or regulato ry require ment that an appellant be provided with pro bono counsel . Sanders , 114 M.S.P.R. 487, ¶ 7; Brum v. Department of Veterans Affairs , 109 M.S.P.R. 129, ¶ 5 (2008). To the extent the appellant was apparently unsuccessful in securing representation, he must accept the consequences of that decision. Sanders , 114 M.S.P.R. 487, ¶ 7; Brum , 109 M.S.P.R. 129, ¶ 5; Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981). In this regard , the appellant also generally claims on review that he was denied the “benefit of a doubt owed to pro se appellants.” PFR File, Tab 1 at 4. While it is true that pro se appellants are not required to plead issues with the precision of an attorney in a judicial proceeding, Gilliam v. Office of Personnel Management , 91 M.S.P.R. 12 352, ¶ 17 (2002), such consideration does not extend to a less strict interpretation of the law. Our review of this voluminous record reflects that the administrative judge carefully exercised his discretion to provide the appellant with the consideration owed to a pro se appellant.11 NOTICE OF APPEAL RIG HTS12 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 Pro tection Board does not 11 More than 9 months after the close of the record on review, the appellant filed a request for leave to file a pleading, claiming that he had recently “come a cross” new evidence regarding the nature of his duties as a System Engineer. PFR File, Tab 33. The Office of the Clerk of the Board responded, advising the appellant that the Board’s regulations do not provide for pleadings other than a petition for revi ew, a cross petition for review, a response to the petition for review or cross petition for review, and a reply to a response to a petition for review. 5 C.F.R. § 1201.114 (a)(5); PFR File, Tab 35. The appellant has failed to demonstrate the need for this pleading or show that it was not readily available before the record closed. Grassell v. Department of Transportation , 40 M.S.P.R. 554 , 564 (1989) (finding that to constitute new and material evidence, the information contained in the documents, not just th e documents themselves, must have been unavailable despite due diligence when the record closed). For these reasons, the appellant’s request for leave to file an additional pleading is denied, as is his request that the Board compel the agency to produce his travel records. PFR File, Tab 34. Eight months later, the appellant filed another request for leave to file a pleading, consisting of the agency’s response to a Freedom of Information Act request he submitted in 2015 which, he claimed, would support his prior arguments pertaining to the nature of his work, travel, and medical conditions. PFR File, Tab 38. The Office of the Clerk responded as it did to his previous motion. Compare id., with PFR File, Tab 35. Again, the appellant has failed to demon strate the need for this pleading or show that it was not readily available before the record closed. Grassell , 40 M.S.P.R. at 564. For this reason, the appellant’s request for leave to file this additional pleading is also denied. 12 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. 13 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 see k review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by you r chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which mus t be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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 14 http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative recei ves this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and 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/Co urt_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, 15 and your representative receives this decision before you do, then 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 Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.13 The court of appeals must receive your petition for 13 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. 16 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals 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 retroac tive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 17 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CASH_MARCUS_ALEX_AT_844E_16_0508_I_1_FINAL_ORDER_1916372.pdf	2022-04-14	null	AT-844E	NP
4,471	https://www.mspb.gov/decisions/nonprecedential/ANDERSON_MELISSA_J_DE_315H_15_0003_I_1_FINAL_ORDER_1916377.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MELISSA J. ANDERSON, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER DE-315H -15-0003 -I-1 DATE: April 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Melissa J. Anderson , Logan, Utah, pro se. Glenn R. Cascon , San Francisco, California, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal as withdrawn . For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 In early August 2014, the agency terminated the appellant from her Tax Examining Technician position d uring her probationary period. Initial Appeal File (IAF), Tab 1 at 7. In late September 2014, th e appellant filed the instant appeal, challenging the termination. Id. at 1 -3. The administrative judge instructed the appellant to meet her burdens concerning both jurisdiction and timeliness. IAF, Tabs 2 -3. In the days that followed, the appellant w ithdrew her appeal. IAF, Tab 7; Tab 8, Initial Decision (ID) at 2. Therefore, the administrative judge issued an initial decision dismiss ing the appeal. ID at 1 -2. The decision included instructions that it would become final on November 20, 2014, unles s a petition for review was filed by that date. ID at 2. ¶3 In August 2017, the appellant filed the petition for review currently before us. Petition for Review (PFR) File, Tab 1. She also filed a motion to accept her filing as timely. PFR File, Tab 3. The agency has filed a response. PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶4 The Board’s regulations provide that a petition for review must be filed within 35 days of the issuance of the initial decision or, if the appellant shows that the initial decision was received more than 5 days after the date of issuance, within 30 days af ter the date she received the initial decision. 5 C.F.R. § 1201.114 (e). The Board will waive its filing deadline only upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114 (f), (g). To establish good cause for an untimely filing, a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). T he Board will consider the length of the delay, the reasonableness of her exc use 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 3 affected her ability to comply with the time limits or of unavoidable casualty or misfo rtune which similarly shows a causal relationship to her inability to timely file her petition. Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶5 Applying these factors, we find that the appellant has failed to establish good cause for her untimely petition for review. Although she is proceeding pro se, the appellant’s d elay of approximately 2 years and 9 months is substantial. Compare ID at 2, with PFR File, Tab 1; see Lobell v. Department of Agriculture , 98 M.S.P.R. 582 , ¶ 5 (2005) (finding a 2 -year delay to be substantial, despite an appellant’s pro se status). In addition, the appellant has failed to adequately explain the entirety of that delay. According to the appellant, her probationary termination stemmed from a charge of absence without leave (AWOL), and she had text messages showing she should not have been considered AWOL, but she lost proof of those messages around the time of her initial appeal by dropping her phone in a bathtub. PFR File, Tab 3 at 1 -2. She reports discovering the text messages again in “2016 when [she] found [the] verifiable record,” by purchasing a new phone and downloading old messages from the cloud. Id. at 2. However, she has failed to provide any explanation for the apparent delay between that 2016 discovery of her text messages and her August 2017 petition for review. See Copley v. Department of Energy , 58 M.S.P.R. 437 , 439 -40 (1993) (dismissing a petition for review as u ntimely without good cause when , among other things, the appellant failed to explain the months -long delay between his purported discovery of new evidence and the filing of hi s petition). ¶6 Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the dismissal of the probationary termination appeal as withdrawn . 4 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summ ary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which case s fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular 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: 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is mos t appropriate in any matter. 5 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informat ion about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Pr actice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC rev iew of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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 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/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 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 7 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law b y the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 8 Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ANDERSON_MELISSA_J_DE_315H_15_0003_I_1_FINAL_ORDER_1916377.pdf	2022-04-14	null	DE-315H	NP
4,472	https://www.mspb.gov/decisions/nonprecedential/LINARES_ROSADO_JOSE_W_NY_4324_08_0348_B_1_FINAL_ORDER_1916395.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOSE W. LINARES -ROSADO, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER NY-4324 -08-0348 -B-1 DATE: April 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jose W. Linares -Rosado , Luguillo, Puerto Rico, pro se. Krista M. Irons , Esquire, New York, New York, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal alleging a violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301‑4335) (USERRA). For the reasons 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required 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 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 appellant filed an appeal with the Board challenging the U.S. Postal Service’s decision to rescind a conditional job offer after finding him medically unsuitable for the position of City Carrier. Linares -Rosado v. U.S. Postal Service , 112 M.S.P.R. 599 , ¶ 2 (2009). The regional office therein docketed the appeal under three separa te docket numbers based on the alleged wrongdoing: (1) MSPB Docket No. NY -3443 -08-0345 -I-1 (challenging the agency’s conclusion that the appellant was medically unsuitable for the position); (2) MSPB Docket No. NY -3330 -08-0346 -I-1 (challenging the agency’ s decision under the Veterans Employment Opportunities Act of 1998 (VEOA) ); and (3) the instant appeal, MSPB Docket No. NY -4324 -08-0348 -I-1 (challenging the agency’s action under USERRA). Id., ¶ 1 n.1. The administrative judge summarily dismissed all thr ee appeals as withdrawn based upon a settlement agreement. Linares -Rosado v. U.S. Postal Service , MSPB Docket No. NY-4324 -08-0348 -I-1, Initial Appeal File (IAF), Tab 5 , Initial Decision at 1-2; Linares -Rosado , 112 M.S.P.R. 599 , ¶ 2. The Board subsequently vacated the initial decisions and remanded the appeals separately. Linares -Rosa do v. U.S. Postal Service , MSPB Docket No. NY -4324 -08-0348 -B-1, Remand File (RF), Tab 1; see Linares -Rosado , 112 M.S.P.R. 599 , ¶ 17. ¶3 On remand, the administrative judge informed the appellant of how to establish jurisdiction over his USERRA appeal. RF, Tab 5 at 2 -4. After the parties responded on the jurisdiction al issue, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdicti on. RF, Tabs 6 -7, Tab 9, Remand Initial Decision ( RID) at 1 -2. Specifically, the administrative judge found that the appellant failed to nonfrivolously allege that his performance of duty in a uniformed service was a substantial or motivating factor in the loss of 3 a benefit of employment. RID at 5 -6. The remand initial decision was dated February 2, 2010, and gave a finality date of M arch 9, 2010. RID at 1, 6. On March 4, 2010, the administrative judge issue d an E rratum correcting the date of issuance to March 2, 2010, and informing the appellant that the initial decision would become final on April 6, 2010, unless a petition for review was filed by that date . RF, Tab 10. ¶4 The appellant filed a petition for review of the initial decision on June 12, 2021. Linares -Rosado v. U.S. Postal Service , MSPB Docket No. NY-4324 -08-0348 -B-1, Remand Petition for Review ( RPFR) File, Tab 3.2 The agency has responded to his petition for review, and the appellant has replie d to its response. RPFR File, Tabs 6, 9 . DISCUSSION OF ARGUME NTS ON REVIEW The appellant’s petition for review is untimely filed without good cause shown for the delay in filing. ¶5 A pe tition for review must be filed within 35 days after the date of issuanc e of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision . Hawley v. Social Security Administration , 108 M.S.P.R. 587 , ¶ 4 (2008); 5 C.F.R. § 1201.114 (e). The appellant claim s that he did not receive any communications from the agency or the administrative judge after December 28 , 2009. RPFR File, Tab 3 at 21. The record reflects that the New York Field Office served the initial decision on 2 The appellant initially filed a submission on May 4, 2021. RPFR, Tab 1. After the Acting Clerk of the Board informed the appellant that his submission did not comply with the Board’s regulations and would not be processed as a petition for review , he submitted a perfected petition for review. RPFR File, Tab 2 at 1 -2, Tab 3. Thereafter, the Acting Clerk of the Board issued a notice properly acknowledging June 12, 2021 , as the filing d ate of the appellant’s petition for review. RPFR, Tab 4 ; see Robinson v. Office of Personnel Management , 56 M.S.P.R. 325 , 328 ( addressi ng the timeliness of the appellant’s perfected petition for review ), aff’d , 5 F.3d 1505 (Fed. Cir. 1993) . 4 the appellant by U.S. mail on March 2, 2010. RF, Tab 10.3 Further, the appellant’s pleading addressing the timeliness of his pet ition for review explicitly describes the administrative judge’s March 4, 2010 Erratum and its reference to the February 2, 2010 initial decision a nd the April 6, 2010 finality date. RPFR, Tab 3 at 20 -21. In these circumstances, we find that the appellant has failed to rebut the presumption of due delivery and receipt of the initial decision. See Blue v. U.S. Postal Service , 65 M.S.P.R. 370 , 374-75 (1994), aff’d , 65 F.3d 188 (Fed. Cir. 1995) (Table). We find that, to be timely, the appellant’s petition for review should have be en filed by April 6 , 2010. RF, Tab 1 1. The appellant filed his petition for review o n June 12, 2021. RPFR File , Tab 1 at 2. Accordingly, his petition for review is untimely filed by over 11 years. ¶6 The Board will waive the time limit for fili ng a petiti on for review upon a showing of good cause for the delay in filing. Hawley , 108 M.S.P.R. 587 , ¶ 4; 5 C.F.R. § 1201.114 (g). To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particu lar circumstances of the ca se. Hawley , 108 M.S.P.R. 587 , ¶ 4. To determine whether an appellant has shown good cause, the Board will consider the length of t he delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limit s or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Id. 3 The certificate of service reflects that it was mailed to the same address as the administrative judge’s jurisdictional order, which the appellant received. RF, Tab 5 at 9, Tab 6 at 1, Tab 10 at 2. It is also the same ad dress the appellant used on his petition for review. RPFR File, Tab 3 at 26. 5 ¶7 The appellant argues that good cause exists for his untimely filed petition for review becaus e he has been waiting for the agency representative to submit all of the evidence and documents used in his appeal. RPFR File, Tab 3 at 1 -4. He further asserts that he has been requesting that the administrative judge order the agency to present such evidence and document s, and he has been waiting on a response from the administrative judge. Id. at 2, 4. Finally, he claims that he has been requesting that the administrative judge exclude the agency ’s former representative4 from the case due to an alleged conflict of interest, a nd he has similarly been waiting on a response from the administrative judge on this issue. Id. at 2. We find that he has failed to present good cause for waiver of the deadline to file. ¶8 Although the appellant is pro se, his over 11 -year delay in filing is lengthy and militates against waiving the filing deadline. See Whitworth v. Department of the Treasury , 106 M.S.P.R. 401 , ¶ 7 (2007), aff’d , 268 F. App’x 962 (Fed. Cir. 2008). Furthermore, his assertion that he was waiting on documents from the agency and responses from the administrative judge do not establish good cause for a waiver of the filing deadline . Indeed, he has not explained his attempts to obtain these documents or why he could not have submitted his petition for review without them. See Schuringa v. Department of the Treasury , 106 M.S.P.R. 1 , ¶ 8 (2007); Benroth v. Department of the Army , 79 M.S.P.R. 15 , ¶ 6 (1998). Of note, the record does not contain any discovery requests or motions seeking to compel discovery by the appellant. Moreover, despite the appellant’s claims to the contrary, the agency did respond with evidence and argument on the USERRA jurisdictional issue. RF, Tab 7. Nonetheless, regardless of whether the appellant submitted any requests for evidence, he has 4 On June 22, 2021, the agency deactivated that representative and designated a new agency representative in this appeal. RPFR File, Tab 5. 6 not demonstrated how his alleged requests, or the absence of any responses, affected his ability to timely file his petition for review. See Benroth , 79 M.S.P.R. 15 , ¶ 6 (finding no good cause whe n an appellant failed to explain why he could not have timely submitted a pet ition for review without certain documents). Even if the agency improperly failed to submit evidence and the administrative judge failed to respond to the appellant’s requests, he has not explained how this prevented him from raising these issues followin g issuance of the initial decision in a timely petition for review. We have reviewed the appellant’s remaining arguments, many of which pertain to the merits of the appeal and alleged error by the administrative judge; however, we find that the appellant has not explained how he was prevented from raising any of these arguments in a timely petition for review. We conclude that the appellant did not exercise due diligence or ordinary prudence as would excuse his substantial, 11-year delay. ¶9 Accordingly, we dismiss the petition for review as untimely filed without good cause shown . 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 USERRA jurisdictional issue. NOTICE OF APPEAL RIG HTS5 You may obtain review of this final 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 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 7 Systems Protection B oard does not provide legal advice on which option is most appropriate for your situation and the rights des cribed below do not represent a statement of how courts will rule regardin g which cases fall within their jurisdiction. If you wish to seek review of this 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 receiv ed by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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. 8 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for 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 claims only, excluding all other issues . 5 U.S. C. § 7702 (b)(1). You must file any such request with the 9 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a repr esentative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board's disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. C ourt of Appeals for the Federal Circuit or any court of appeals of 10 competent jurisdiction.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circ uit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Peti tioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attor ney will accept representation in a given case. 6 The origi nal statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 11 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LINARES_ROSADO_JOSE_W_NY_4324_08_0348_B_1_FINAL_ORDER_1916395.pdf	2022-04-14	null	NY-4324	NP
4,473	https://www.mspb.gov/decisions/nonprecedential/LINARES_ROSADO_JOSE_W_NY_3330_12_0223_I_1_FINAL_ORDER_1916432.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JOSE W. LINARES -ROSADO, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER NY-3330 -12-0223 -I-1 DATE: April 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jose W. Linares -Rosado , Luguillo, Puerto Rico, pro se. Krista M. Irons , Esquire, New York, New York, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA). For the reasons set forth below, the appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114 (e), (g). 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any 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). BACKGROUND ¶2 The appellant filed the instant appeal arguing, among other things, that the agency violated his rights under VEOA when it rescinded its conditional job offer after finding the a ppellant medically unsuitable for the position of City Carrier. Initial Appeal File (IAF), Tab 1 at 6, 21 -22. The administrative judge subsequently issued an initial decision denying the appellant’s request for corrective action under VEOA, finding the a ppellant failed to meet the 60 -day time limit for filing a complaint with the Department of Labor (DOL) after the agency action in question . IAF, Tab 10, Ini tial Decision (ID) at 2 -5. The administrative judge additionally found that th e appellant failed to establish that the 60 -day filing deadline was subject to equitable tolling. Id. In the alternative, t he administrative judge found that the appellant was barred by res judicata from relitigating matters previously decided before the Board in Linares -Rosado v. U.S. Postal Service , MSPB Docket No. NY -3330 -08-0346 -B-1. ID at 5 -6. The administrative judge informed the appellant that the initial decision would become final on November 28, 2012, unless a petition for review was filed by that date. ID at 6 -7. ¶3 The appellant filed a petition for review of the initial decision on June 7, 2021. Petition for Review (PFR) File, Tab 1 at 1 -2.2 The agency has responded to his petition for review, and the appellant has replied to its response. PFR File, Tab 7, Tab 10. 2 The appellant initially filed submission s on May 4, May 5, and May 15 , 2021. PFR File, Tab s 1-2. After the Acting Clerk of the Board informed the appellant that his submission s did not comply wit h the Board’s regulations and would not be proc essed as a petition for review, he submitted a p erfected petition for review. PFR File, Tab s 2, 4. Thereafter, the Acting Clerk of the Board issued a not ice properly acknowledging June 7, 2021 , as the filing date of the app ellant’s petition for review. PFR File, Tab 5 ; see Robinson v. Office of Personnel Management , 56 M.S.P.R. 325 , 328 (addressing the timeliness of the appellant’s perfected petition for review), aff’d , 5 F.3d 1505 (Fed. Cir. 1993). DISCUSSION OF ARGUME NTS ON REVIEW The appellant’s petition for review is untimely filed without good cause shown for the delay i n filing. ¶4 A petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision . Hawley v. Social Security Administration , 108 M.S.P.R. 587 , ¶ 4 (2008); 5 C.F.R. § 1201.114 (e). The initial decision was prop erly served on the appellant , and he agrees that he received it. IAF, Tab 10; PFR File, Tab 4 at 23. Thus, t o be timely, the appellant’s petition for review should have been filed by November 28, 2012. ID at 6 -7. The appellant filed his petition for review on June 7, 2021. PFR File, Tab 1 at 2. Accordingly, his petition for review is untimely filed by over 8 years. ¶5 The Board will waive the time limit for fili ng a petition for review upon a showing of good cause for the delay in filing. Hawley , 108 M.S.P.R. 587 , ¶ 4 ; 5 C.F.R. § 1201.114 (g). To establish good cause for an untimely filing, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the ca se. Hawley , 108 M.S.P.R. 587 , ¶ 4. To determine whether an appellant has shown good cause, the Board will consider the length of t he delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limit s or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Id. ¶6 The appellant argues that good cause exists for his untimeliness because he has been waiting for the agency represen tative to submit all of the evidence and documents used in his appeal. PFR File, Tab 4 at 1 -4. He further asserts that he has been requesting that the administrative judge order the agency to present such evidence and documents, and he has been waiting o n a response from the administrative judge. Id. at 2, 4. Finally, he claims that he has been requesting that the administrative judge exclude the agency ’s former representative3 from the case due to an alleged conflict of interest, and he has similarly been waiting on a response from the administrative judge on this issue . Id. We find that he has failed to present good cause for waiver of the deadline to file. ¶7 Although the appellant is pro se, his over 8 -year delay in filing is lengthy and militates aga inst waiving the filing deadline. See Whitworth v. Department of the Treasury , 106 M.S.P.R. 401 , ¶ 7 (2007) , aff’d , 268 F. App’x 962 (Fed. Cir. 2008) . Furthermore, his assertion that he was waiting on documents from the agency and responses from the administrative judge do not establish good cause for a waiver of the filing deadline. Indeed, he has not explained his attempts to obtain these documents or why he could not have submitted his petition for review without them. See Schuringa v. Department of the Treasury , 106 M.S.P.R. 1 , ¶ 8 (2007); Benroth v. Department of the Army , 79 M.S.P.R. 15 , ¶ 6 (1998) . Of note , the record does not contain any discovery requests or motions seeking to compel discovery by the appellant. Moreover, the agency did respond with evidence and argument on the V EOA jurisdictional issue. IAF, Tab 9. Nonetheless, r egardless of whether the appellant submitted any requests for evidence , he has not demonstrated how his alleged requests, or the absence of any responses, affected his ability to timely file his petition for review. See Benroth , 79 M.S.P.R. 15 , ¶ 6 (finding no good cause when an appellant failed to explain why he c ould not have timely submitted a petition for review without certain documents). Even if the agency improperly failed to submit evidence and the administrative judge failed to respond to the appellant’s requests, he has not explained how this prevented him from raising these issues 3 On June 22, 2021, the a gency deactivated that representative and designated a new agency representative in this appeal. PFR File, Tab 6. following issuance of the initial decision in a timely petition for review . We have reviewed the appellant’s remaining arguments, many of which pertain to the merits of the appeal and alleged error by the ad ministrative judge; however, we find that the appellant has not explained how he was prevented from raising any of these arguments in a timely petition for review. We conclude that the appellant did not exercise due diligence or ordinary prudence as would excuse his substant ial filing delay of more than 8 years . ¶8 Accordingly, we dismiss the petition for review as untimely filed without good cause shown . 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 deci sion of the Board regarding the appeal under VEOA. 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 a vailable appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights des cribed below do not represent a statement of how courts will rule regarding which cases fall w ithin their jurisdiction. If you wish to seek review of this 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 ma y result in the dismissal of your case by your chosen forum. Please read 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 decis ions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. about whether a particular forum is the a ppropria 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 rev iew to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, an d Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representa tion for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cas es involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you ma y obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection 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 representat ive receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U .S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the 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 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 23 02(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your pet ition 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 jurisdictio n expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contain ed within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono fo r information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator /CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	LINARES_ROSADO_JOSE_W_NY_3330_12_0223_I_1_FINAL_ORDER_1916432.pdf	2022-04-14	null	NY-3330	NP
4,474	https://www.mspb.gov/decisions/nonprecedential/ANDERSON_WILLIAM_AT_0752_14_0604_X_1_FINAL_ORDER_1916504.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD WILLIAM ANDERSON, Appellant, v. DEPARTMENT OF THE TR EASURY, Agency. DOCKET NUMBER AT-0752 -14-0604 -X-1 DATE: April 14, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Eric L. Pines , Esquire, Houston, Texas, for the appellant. Andrew M. Greene , Atlanta, Georgia, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 On April 28, 2016, the administrative judge issued a compliance initial decision finding the agency in noncompliance with a settlement agreement resolving the appellant’s underlying removal appeal. Anderson v. Department of the Treasury , MSPB Docket No. A T-0752 -14-0604 -C-1, Compliance File (CF), 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 Tab 5, Compliance Initial Decision (CID). For the reasons discussed below, we now find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIAN CE ¶2 On Mar ch 26, 2014, the appellant appealed his removal to the Board . Anderson v. Department of the Treasury , MSPB Docket No. AT -0752 -14-0604 - I-1, Initial Appeal File (IAF), Tab 1. During the pendency of the appeal, the parties executed a written settlement agre ement . IAF, Tab 3 2. In a June 12, 2015 initial decision, the administrative judge dismissed the removal appeal as settled.2 IAF, Tab 33, Initial Decision . However, the appellant subsequently filed a petition for enforcement claiming that the agency bre ached the settlement agreement. CF, Tab 1. ¶3 On April 28, 2016, the administrative judge issued a compliance initial decision finding that the agency had not taken all of the actions required by the settlement agreement . CID. Accordingly , he granted the appellant’s petition for enforcement and ordered the agency to take the following actions : (1) cancel the Standard Form (SF) 50 reflecting that the appellant was removed for misconduct effective April 11, 2013, and expunge all documents in the appellant’s Official Personnel File (OPF) related to the April 11, 2013 removal for misconduct; (2) issue new SF -50s reflecting that the appellant was in a Family and Medical Leave Act -Leave Without Pay duty status from January 13 through April 13, 2013, and that the 14 -day suspension effective January 13, 2013, has been rescinded; (3) issue new SF -50s reflecting that the appellant was in a paid duty status from April 13, 2013, through July 13, 2015, and reflecting the career -ladder promotion the appell ant would have received during this time period; (4) pay the appellant the back pay due to him pursuant to the settlement agreement ; (5) issue a SF-50 reflecting that the appellant was removed for 2 After neither party filed a petition for review by July 17, 2015, the initial decision became the final decision of the Board. ID at 3; see 5 C.F.R. § 1201.113 . 3 medical inability to perform effective July 14, 2015 ; and ( 6) identify the agency official charged with complying with th e administrative judge’s order and inform such official in writing of the potential sanction for noncompliance. CID at 9-10. The compliance initial decision informed the agency that, if it dec ided to take the actions required by the decision, it must submit to the Clerk of the Board a statement that it h as taken the actions identified , along with evidence establishing that it has taken those actions. CID at 10-11. It also informed the parties that they could file a petition for review if they disagreed with the compliance i nitial decision. CID at 11 -12, 15 . ¶4 On May 10, 2016, the agency submitted to the Clerk of the Board evidence reflecting that it had informed the agency official charged with complying with the administrative judge’s order of the potential sanction for noncompliance and emails regarding its efforts to calculate the amount of back pay owed to the appellant . Anderson v. Department of the Treasury , MSPB Docket No. AT -0752 - 14-0604-X-1, Compliance Referral File (CRF), Tab 1. On May 27, 2016, the agency submitted copies of the new SF-50s ordered by the administrative judge and documentation reflecting that a request to process the back pay award had been sent to the National Finance Center . CRF, Tab 2. O n June 10, 2016, the agency submitted evidence reflecting that agency disbursed the back pay award to the appellant on June 3 and June 7, 2016 . CRF, Tab 3. The appellant did not file a response to the agency’s evidence of compliance. ANALYSIS ¶5 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situati on 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. 5 C.F.R. § 1201. 183(d). An agency’s assertions of compliance must include a clear explanation of its 4 complia nce actions supported by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011). The appellant ma y 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). ¶6 We find that the agency has submitted sufficient evidence to establish its compliance with the Board’s order. As discussed above, the agency submitted evidence indicating that th e appellant’s OPF contains SF -50s that accurately reflect the terms of the settlement agreement an d administrative judge’s orders and that the appellant has now received the appropriate amount of back pay. CRF, Tabs 1 -3. The appellant has not disputed the agency’s evidence. ¶7 In light of the agency’s evidence of compliance, we find the agency in compliance and dismiss the petition for enforcement. This is the final decision of 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 TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. 5 NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how cour ts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have question s about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 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 belo w: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 2 0013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingto n, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the B oard’s 8 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 Federa l Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	ANDERSON_WILLIAM_AT_0752_14_0604_X_1_FINAL_ORDER_1916504.pdf	2022-04-14	null	AT-0752	NP
4,475	https://www.mspb.gov/decisions/nonprecedential/OLIVER_EDWARD_E_NY_0831_16_0059_I_1_FINAL_ORDER_1916086.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD EDWARD E. OLIVER, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER NY-0831 -16-0059 -I-1 DATE: April 13, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Edward E. Oliver , Mastic, New York, pro se. Karla W. Yeakle , Washington, D.C., for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for revi ew of the initial decision, which dismissed for lack of jurisdiction his appeal of the decision of the Office of Personnel Management (OPM) to reduce his retirement annuity by eliminating credit for his post -1956 military service. For the reasons discusse d below, we GRANT the appellant’s petition for review and REVERSE the initial decision 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 afford the appellant an opportunity to make a deposit for his post -1956 military service. BACKGROUND ¶2 On May 21, 2012, OPM issued a final decision to reduce the appellant’s annuity by eliminating credit for his post -1956 military service because he had become 62 years old and had not made a deposit for such service. Initial Appeal File (IAF), Tab 9 at 20-21. After the appellant filed an appeal with the Board , OPM rescinded its decision and indicated that it would give the appellant an opportunity to make a belated deposit on his post -1956 service. Id. at 12-13, 17. Accordingly, on August 9, 2012, because OPM’s rescission of its final decision deprived the Board of jurisdiction, the administrative judge dismissed the appeal for lack of jurisdiction. Oliver v. Office of Personnel Management , MSPB Docket No. NY-0831 -12-0189 -I-1, Initial Decision (Aug. 9, 2012). ¶3 On December 1, 2015, the appellant filed this appeal , asserting that OPM continued to provide him with a reduced annuity and failed to offer him the opportunity to make the belated deposit. IAF, Tab 1. On February 2, 2016, OPM responded by noting that on August 27, 2012, it had asked the Defense Finance and Accounting Service (DFAS) to provide the appellant’s estimated earnings during his military service and that DFAS had thus far not responded . IAF, Tab 9 at 4, 10. OPM stated that it could not provide the appellant with a bill for the required deposit without the earnings information . Id. at 4. ¶4 On December 20, 2016, OPM stated during a telephone conference with the administrative judge and the appellant that DFAS still had not provided the appellant’s estimated earnings. IAF, Tab 11. On August 7, 2017, the administrative judge ordered OPM to indicate whether it intended to take any further action regarding the appellant’s case. IAF, Tab 14. ¶5 On August 9, 2017, OPM responded by asserting that it had received the earnings information from DFAS and ha d informed the appellant by letter dated 3 March 8, 2016, that he needed to make a deposit within 30 days. IAF, Tab 15 at 4. OPM asserted that the appellant had not responded to the notice , which it attached to its pleading . Id. at 4, 6 -7. ¶6 Also on August 9, 2017, the administrative judge issued a Notice and Order indicating that, based on OPM’s submissions, she believed the appeal would have to be dismissed for lack of jurisdiction. IAF, Tab 16. She ordered the appellant to provide a response by August 23, 2017, regarding why he believed the Board had jurisdiction over the appeal . Id. On August 24, 2017, after the appellant failed to respond, the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 17, Initial Decision . ¶7 The app ellant has filed a petition for review, asserting that until August 16, 2017, when he received OPM’s August 9, 2017 pleading, he had not received a copy of its notice dated March 8, 2016 . Petition for Review (PFR) File, Tab 1 at 4. OPM has filed a respon se. PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶8 The Board has jurisdiction over OPM determinations affecting an appellant’s rights or interests under the Civil Service Retirement System only after OPM has issued a final decision. Morin v. Office o f Personnel Management , 107 M.S.P.R. 534 , ¶ 8 (2007) , aff’d , 287 F. App’x 864 (Fed. Cir. 2008) . If OPM completely rescinds a final decision, the Board no longer retains jurisdiction over the appeal in which that decision is at issue. Campbell v. Office of Personnel Management , 123 M.S.P.R. 240 , ¶ 7 (2016). ¶9 However, if an outstanding issue remains after a rescission and it is clear that OPM will not issue another decision, the Board retains jurisdiction to adjudicate the matter . Morin , 107 M.S.P.R. 534 , ¶ 9. Accordingly, when OPM has determined in its rescission letter that an appellant was entitled to make a belat ed deposit for his post -1956 military service and indicated its intent to reduce his annuity if the deposit was not made, and OPM did not issue a new final 4 decision , the Board has found the rescission letter to constitute a final decision by OPM to reduce the appellant’s annuity. Id. ¶10 Here, OPM stated in its rescission letter that it determined that the ap pellant established his entitlement to make a belated deposit. IAF, Tab 9 at 17. In its response to the administrative judge’s inquiry of whether it intended to take any further action regarding the appellant , OPM asserted that it provided the appellant the opportu nity to make a belated deposit o n March 8, 2016, but that he failed to do so and thus “forfeited his opportuni ty to make said pa yment.” IAF, Tab 15 at 4, Tab 14 at 2 . It therefore appears that OPM has made a final decision to reduce the appellant’s annuity and does not intend to take any further action in this matter. Accordingly, we find the Board has jurisdiction over this app eal. See 5 U.S.C. § 8347 (d)(1); Morin , 107 M.S.P.R. 534 , ¶ 9. ¶11 The Boa rd will order OPM to allow an individual to make a post -separation deposit to his retirement account to rec eive retirement credit for post-1956 military service pursuant to 5 U.S.C. §§ 8332 (j) and 8334(j) only if the individual shows that OPM or his employing agency made an administrative error that caused his fail ure to timely make the deposit. Hooper v. Office of Personnel Management , 108 M.S.P.R. 614 , ¶ 7 (2008). Here, however, OPM itself has found that the appellant established his entitlement to make a post -separa tion deposit. IAF, Tab 9 at 17. ¶12 OPM also has acknowledged that it now has the information it needs to bill the appellant for the required deposit . IAF, Tab 15 at 4 -7. OPM’s only argument regarding why the Board should not order it to allow the appella nt to make a post-separation deposit is that it already has provided him the opportunity to do so and that he failed to take advantage of that opportunity . Id. at 4. However, OPM has failed to provide any evidence showing that it actually mailed the Marc h 8, 2016 notice to the appellant . See id. at 6-7. ¶13 In OPM’s August 9, 2017 pleading, its representative stated that OPM had billed the appella nt via the March 8, 2016 notice. Id. at 4. However, the 5 representative acknowledged that the pleading did no t assert facts that she knew from personal knowledge. Id. at 3. Notably, the signature of the notice’s purported author does not appear on OPM’s copy and OPM has not provided evidence that the notice was actually mailed . Id. at 7. ¶14 Rather than provide any proof that it mailed the March 8, 2016 notice, OPM essentially argued that the record indicated that the appellant failed to act diligently in checking his mail. Id. at 4. OPM asserted that the appellant admitted that he did not regularly check his addre ss of record, a post office ( P.O. ) Box. Id. ¶15 In fact, in his December 23, 2015 pleading, the appellant stated that he had been checking his P.O. Box twice a month up to that point, but would from then on have his son check it more often. IAF, Tab 3. On review, the appellant indicated that after January 20, 2016, he began to personally check his P.O. Box every other day. PFR File, Tab 1 at 7. He also stated that through July 2017 , he called OPM every 2 or 3 months and was repeatedly told that OPM had not yet made a decision or received the necessary information from DFAS . Id. at 5-6. That OPM was waiting for a response from DFAS would have been consistent with OPM’s statement during the December 20, 2016 conferen ce call that DFAS still had not provided the appellant’s estimated earnings. IAF, Tab 11. In its response to the petition for review, OPM does not counter or otherwise a ddress the appellant’s assertions. PFR File, Tab 4. ¶16 For the reasons stated above , we find that the appellant has met his burden of establishing his entitlement to make a post -separation deposit, with interest. The appellant further requests a waiver of the interest on the deposit and an award of compensatory and punitive damages for OPM’ s alleged age discrimination .2 2 The appellant additionally request s back pay and front pay . PFR File, Tab 1 at 10 -11. The Board’s jurisdiction in this appeal is limited to OPM’s decision to reduce the appellant’s annuity. See 5 U.S.C. § 8347 (d). To the extent that the appellant requests back pay and front pay because he alleges that his retirement was involuntary , he may 6 PFR File, Tab 1 at 10-11. However, there is no statutory basis for the waiver of interest on such a deposit, 5 U.S.C. § 8334 (e), (j) , and the Board may not issue such a waiver based on equitable considerations, see Schoemakers v. Office of Personnel Management , 180 F.3d 1377 , 1382 (Fed. Cir. 1999). Nor does the Board have the authority to award punitive damages, Wingate v. U.S. Postal Service , 118 M.S.P .R. 566 , ¶ 3 n.2 (2012), or compensatory damages for age discrimination claims, Antonio v. Department of the Air Force , 107 M.S.P. R. 626 , ¶ 13 (2008). Accordingly, we deny his requests.3 ORDER ¶17 We ORDER OPM to set a time limit under 5 C.F.R . § 831.2107 by which the appellant may make the military deposit. OPM’s no tice to the appellant should include the amount of the deposit to be paid and an explanation of how it calculated that amount. OPM must complete this action no later than 20 days after the date of this decision. ¶18 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 took to carry out the Board’s O rder. The appellant, if not notified, should ask OPM about its progress. See 5 C.F.R. § 1201.181 (b). ¶19 No later than 30 days after OPM tells the appellant that it has fully carried out the Board’s Order, the appellant may file a petition for enforcement with the office that issued the initial decision on thi s appeal if the appellant believes that OPM did not fully carry out the Board’s Order. The petition should contain specific reasons why the appellant believes that OPM has not fully carried out the file a separate Board appeal against his former employing agency. See 5 C.F.R. § 1201.3 (a)(1). 3 The appellant also requests an award of attorney fees. PFR File, Tab 1 at 10 -11. Any motion for attorney fees must be filed within 60 da ys after the Board’s final decision. 5 C.F.R. § 1201.203 (d). 7 Board’s Order, and should include the dates and results o f any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶20 This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulation s, section 1201.113(c) ( 5 C.F.R. § 1201.113 (c)). 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 rea sonable attorney fees and costs. To be paid, you must meet the requirements set out at title 5 of the United States Code (U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1202.202, 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 attorney fees motion w ith the office that issued the initial decision on your 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 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights include d in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 8 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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. 9 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link belo w: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 10 If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingt on, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with th e U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 compe tent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases wit h the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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 Federa l Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visi t our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	OLIVER_EDWARD_E_NY_0831_16_0059_I_1_FINAL_ORDER_1916086.pdf	2022-04-13	null	NY-0831	NP
4,476	https://www.mspb.gov/decisions/nonprecedential/HOLT_MICHAEL_J_SF_0714_19_0728_I_1_FINAL_ORDER_1915704.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL J. HOLT, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER SF-0714 -19-0728 -I-1 DATE: April 12, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael J. Holt , Fayetteville, Georgia, pro se. Anna Jang , San Francisco, California, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed his removal by 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). 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 The administrative judge i ssued an initial decision on January 31, 2020, affirming the appellant’s removal from his position as a Motor Vehicle Operator . Initial Appeal File, Tab 30, Initial Decision (ID). The initial decision specifically stated that the deadline to file a petit ion for review was March 6, 2020, and provided information on how to file a petition for review. ID at 25 -29. ¶3 On September 20, 2021, the appellant sent a letter to the Office of the Clerk of the Board stating that he had been informed that his petition fo r review, which he had previously hand -delivered to the Western Regional Office , had gone missing and was never sent to the Clerk of the Board .2 Petition for Review (PFR) File, Tab 1 at 1 , 8. In support of his statement, he attached a letter from the Wes tern Regional Office, dated September 15, 2021, which stated that the office had no record of having received the petition for review that he allegedly hand -delivered to the administrative judge’s paralegal “sometime in 2020 .” Id. at 2. The appellant also attached a document entitled “Appeal, May 2020 ,” which contained arguments related to his case. Id. at 3-6. ¶4 The Acting Clerk of the Board notified the appellant that, because he filed his petition for review after March 6, 2020 , i.e. , over 35 days fo llowing the issuance of the January 31, 2020 initial decision , it was untimely filed. 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 filed to be accompanied by a motion to accept the filing as timely and/or to waive the time limit for good cause, and set the deadline for the appellant to file this motion as October 16, 2021 . Id. at 1-2. On October 29, 2021, the appellant filed his motion to accept 2 The Board received the appellant’s submission on September 30, 2021, but the envelope and tracking number provided by the appellant establishes that it was mailed on September 20, 2021. PFR File, Tab 1 at 1, 8 . Pursuant to 5 C.F.R. § 1201.4 (l), the date of filing by mail is determined by the postmark date, and thus, the date of the petition for review is September 20, 2021. 3 the filing as timely and/or to waiv e the time limit for good cause , attaching an unsigned statement claiming that he had hand -delivered his petition for review to the Washington Regional Office on March 4, 202 0. PFR File, Tab 5 at 3-4, 20. The agency has responded in opposition to the appellant’s petition for review. PFR File, Tab 4. DISCUSSION OF ARGUME NTS ON REVIEW ¶5 A petition for review generally must be filed within 35 days after the date of the issuance of the initial decision or, if the 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 th e initial decision. 5 C.F.R. § 1201.114 (e). The Board will waive this time limit only upon a showing of good cause for t he delay in filing. 5 C.F.R. § 1201.114 (g). To establish good cause for the untimely filing of a pe tition, a party must show that he exercised due diligence or ordinary prudence under the particular circumstances of the case. Rivera v. Social Security Administration , 111 M.S.P.R. 581 , ¶ 4 (2009) ; Alonzo v. Department of the Air Force , 4 M.S.P.R. 180 , 184 (1980). To determine whethe r 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 existen ce of circumstance s beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition. Rivera , 111 M.S.P.R. 581 , ¶ 4; Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). ¶6 The appellant has asserted that his petition for review was timely filed because he hand -delivered it to the administrative judge’s clerk on March 4, 2020. PFR F ile, Tab 5 at 3. I t is the appellant’s burden of proof, by a preponderance of the evidence, to establish the timeliness of his petition for 4 review. 5 C.F.R. § 1201.56 (b)(2)(B ); see Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201 , ¶ 6 (2014) (stating that it is the appellant’s burden of proof to establi sh timeliness of a petition for review). The appellant has not established that he filed his petition for review on March 4, 2020 . As an initial matter, the Wes tern Regional Office stated that it had no record of receiving the appellant’s petition for re view , which it would have had, as it s normal practice is to scan document s intended for another Board office and forward it to the Office of the Clerk of the Bo ard upon receipt . PFR File, Tab 1 at 2 . However, even if the appellant did hand -deliver hi s pe tition for review to the Western Regional Office , the record undermines his claim that he did so on March 4, 2020. First, his September 20 , 2021 submission included a document entitled “Appeal, May 2020 ,” indicating that his petition for review was not finalized until May 2020 , at least two months after March 4, 2020 . Id. at 3-6. Furthermore, the first time the appellant asserted that he delivered h is petition for review on March 4, 2020, was in response to the Board’s acknowledgment letter notifying him that his petition for review may be dismissed as untimely filed. PFR File, Tab 2 at 1-2, Tab 5 at 3. In fact, he did not mention March 4, 2020 as the date of delivery in his September 20, 2021 submission, and it appears that he informed the Western Regional Office that he had delivered the petition for review “sometime in 2020.” PFR File, Tab 1 at 1-2. Therefore, given the above, the appellant has not established by preponderant evidence that he filed his petitio n for review on March 4, 2020 . ¶7 Instead , we find that t he appellant filed his petition for re view on September 20, 2021 , and he has not established good cause for the delay in filing. PFR File, Tab 1 at 8 . The deadline for filing a petition for review in this appeal was March 6, 2020. ID at 25. The appellant filed his petition for review over 18 months later, on September 20, 2021. Such a filing delay is significant. Scali v. Office of Personnel Management , 106 M.S.P.R. 409 , ¶¶ 6, 8 (2007) (finding a 5 filing delay of 1 year was significant); Little v. Government Printing Office , 99 M.S.P.R. 292 , ¶ 9 (2005 ) (finding an approximately 18 -month filing delay was significant ). We recognize that the appellant is pro se, but the assertions in his filings do not offer a persuasive excuse, show that he acted with due diligence, or set forth circumstances beyond the appellant’s control that affected his ability to comply with the filing limit. PFR File, Tab 1 at 1, Tab 5 at 3 -4. Specifically, assuming the appellant believed he submitted his petition for review in 2020, despite not receiving an acknowledgment order from the Clerk of the Board, he did not contact the Board regarding the status of his petition until on or around September 15, 2021 . PFR File, Tab 1 at 2 . Furthermore, we note that the appellant submitted his motion to accept the petition for review as timely and/or waive the time limit for good cause 13 days after the deadline set forth by the Acting Clerk in the acknowledgment letter. PFR File, Tab 2 at 2 , Tab 5 at 20 . Therefore , even though he was on notice that his petition for review may be dismissed as untimely, he still failed to meet the deadline s set forth by the Board , indicating a pattern of a lack of d ue diligence and ordinary prudence . Thus , we do not find that the appellant has establish ed good cause for the delay in filing. ¶8 Accordingly, we dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the removal appeal. NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described bel ow do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to yo ur particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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 7 relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed throu gh the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 8 Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your di scrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washin gton, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW1 2G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challe nge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review eit her with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of 9 competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 The 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	HOLT_MICHAEL_J_SF_0714_19_0728_I_1_FINAL_ORDER_1915704.pdf	2022-04-12	null	SF-0714	NP
4,477	https://www.mspb.gov/decisions/nonprecedential/COLLINS_CAITLYN_N_DE_0752_21_0273_I_1_FINAL_ORDER_1915731.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CAITLYN N. COLLINS, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER DE-0752 -21-0273 -I-1 DATE: April 12, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Caitlyn N. Collins , Tucson, Arizona, pro se. Sherry E. Streicker , Dallas, Texas, for the agency. BEFORE Raymond A. Limon, Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her separation appeal for lack of jurisdiction . On petition for review, the appellant argues that she completed 1 year of continuous service with the agency , one of several prerequisites for the Board to have jurisdiction over her claims. In support of this argument, she files for the first time on review a 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 copy of a Postal Service Form 50 (PS Form 50) , processed September 12, 2018 . She disputes the merits of her removal and re -raises her claim s of retaliation for reporting sexual harassment and participating in grievance activity, procedural error, and violations of other laws . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on a n erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required proced ures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any b asis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 Under 5 C.F.R. § 1201.115 , the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S .P.R. 211 , 213-14 (1980). Nonetheless , we have reviewed the appellant’s PS Form 50 to determine whether it contain s any information impacting the Board’s jurisdiction. See Pirkk ala v. Department of Justice , 123 M.S.P.R. 288 , ¶ 5 (2016) (considering the new evidence submitted by the appellant on review because it concerned the issue of Board jurisdiction, a matter that may be raised at any time during the Board proceedings). The appellant apparently submitted the PS Form 50 to demonstrate the effective date of her employment with the agency, but this information was already contained in the record below. Initial Appeal File, Tab 6 3 at 151 , Petition for Review File, Tab 1 at 4 -5. Further, it is not relevant to the dispositive jurisdictional issue, i.e. that the appellant was not a Postal Service employee with adverse action appeal rights . Thus, the appellant’s new evidence does not provide a basis to disturb the initial decision. NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determin es the time limit for seeking such review and the 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 P rotection Board does not provide legal advice 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 s eek review of this 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 y our chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which mus t be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise w hich option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are inte rested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board app ellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . Th is option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 5 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be f ound at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision befor e you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Em ployment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whi stleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C ), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to t he court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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	COLLINS_CAITLYN_N_DE_0752_21_0273_I_1_FINAL_ORDER_1915731.pdf	2022-04-12	null	DE-0752	NP
4,478	https://www.mspb.gov/decisions/nonprecedential/HRITZ_DENNIS_R_CH_0831_21_0334_I_1_FINAL_ORDER_1915734.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DENNIS R. HRITZ, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER CH-0831 -21-0334 -I-1 DATE: April 12, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dennis R. Hritz , Columbus, Ohio, pro se. Karla W. Yeakle , Washington,, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed his appeal challenging the reconsideration decision of the Office of Personnel Management (OPM) finding him ineligible for deferred annuity benefits for lack of jurisdiction after OPM rescinded its reconsideration decision . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 Generally, we grant p etitions 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 th e 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 p etition 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 challenges the merits of OPM’s reconsideration decision. Petition for Review File, Tab 1 at 6. However, OPM rescinded its reconsideration decision, thereby d ivesting the Board of jurisdiction over this appeal . Initial Appeal File, Tab 9 at 4 -5, Tab 12, Initial Dec ision at 2 ; see Rorick v. Office of Personnel Management , 109 M.S.P.R. 597 , ¶ 5 (2008) ( stating that, if OPM completely rescinds a re consideration decision, its rescission divests the Board of jurisdiction over the appeal in which that reconsideration decision is at issue and the appeal must be dismissed ). Arguments about the merits of the underlying reconsideration decision , which has been rescinded, are irrelevant to the issue of jurisdiction . Accordingly, we deny the petition for review and affirm the initial decision. 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 c ourts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questio ns about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for 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. Washingto n, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is conta ined within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a giv en case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in par t, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Cir cuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later 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 5 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.us courts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decis ion. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s 6 disposition of allegations of a prohi bited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circu it or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B) . If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	HRITZ_DENNIS_R_CH_0831_21_0334_I_1_FINAL_ORDER_1915734.pdf	2022-04-12	null	CH-0831	NP
4,479	https://www.mspb.gov/decisions/nonprecedential/CONTEH_SANFA_SWARAY_DC_0752_21_0012_I_1_FINAL_ORDER_1915741.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SANFA SWARAY CONTEH, Appellant, v. DEPARTMENT OF COMMER CE, Agency. DOCKET NUMBER DC-0752 -21-0012 -I-1 DATE: April 12, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 James Stafford, III , Esquire, Dallas, Texas, for the appellant. Alexis Anderson , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the agency’s removal action based on his failure to meet a condition of employment. The appellant argues that the administrative judge misweighed the evidence in sustaining the charge. Petition for Review (PFR) File, Tab 1. Specifically, he assert s that the charge should not be sustained 1 A nonprecedential order is one that the Board has determined does not add significantly to the 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 because he was paid f or 120 days of work in 2019 including the period of the partial Government shutdown due to lapse in appropriations in December 2018 and January 2019. PFR File, Tab 1 at 3, Tab 4 at 4 -5. The ap pellant additionally repeats his argument that he accepted a 30 -day work assignment that was subsequently canceled, which would have put him over the 120 -day requirement. PFR File, Tab 1 at 3, Tab 4 at 4 -5. ¶2 Generally, we grant petitions such as this one o nly in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the 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 R egulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal,2 we c onclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFF IRM the initial decision, which is now the Board’s final decis ion. 5 C.F.R. § 1201.113 (b). 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 2 The information contained in the documents attached to the appellant’s reply is neither new nor of sufficient weight to change the outcome of this appeal. PFR File, Tab 4 at 6-23; see 5 C.F.R. § 1201.115 (d). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights des cribed below do not represent a statement of how courts will rule regardin g which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and r equirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropria te one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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. 4 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, t hen you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link belo w: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the 5 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 2 0013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washingto n, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the B oard’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 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 b efore the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. July 7, 2018, permane ntly allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CONTEH_SANFA_SWARAY_DC_0752_21_0012_I_1_FINAL_ORDER_1915741.pdf	2022-04-12	null	DC-0752	NP
4,480	https://www.mspb.gov/decisions/nonprecedential/MOORE_KAREN_DA_1221_13_0213_B_1_FINAL_ORDER_1915752.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD KAREN MOORE, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DA-1221 -13-0213 -B-1 DATE: April 12, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rosemary Dettling , Esquire, Washington, D.C., for the appellant. Brandi M. Powell , New Orleans, Louisiana, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has fi led a petition for review of the remand initial decision , which directed the agency to provide her with appropriate relief 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 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential v alue; 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 Boa rd’s case law. See 5 C.F.R. § 1201.117 (c). 2 of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous a pplication of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affec ted the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the remand initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The ap pellant was a Medical Support Assistant with the Primary Care‑Compensation and Pension Unit (PCCPU) of the agency’s Medical Center in Shreveport, Louisiana. Moore v. Department of Vetera ns Affairs , MSPB Docket No. DA-1221 -13-0213 -W-1, Initial Appeal File (IAF), Tab 4, Subtabs 4a, 4e. In April 2012, she sent an email to the agency’s Employee Relations office alleging harassment by her supervisor. IAF, Tab 7 at 12 -14. In April 2012, she also sent a letter to the agency’s Office of the Inspector General alleging the same and claiming that management had not taken remedial action. Id. at 6-11. Effective June 2012, the agency reassigned her from the PCCPU to the Primary Care -Red Team within her Shreveport duty station without a change in job title, pay or benefits. IAF, Tab 4, Subtab 4e. ¶3 Subsequently, the appellant applied and was selected for the Office Automation Assistant position with the agency’s Medical Center in Dallas, Texas, and relocated there. IAF, Tab 4, Subtab 4g. Shortly thereafter, she fil ed the instant appeal alleging that her reassignment within the Shreveport duty station 3 was in retaliation for whistleblowing activity. IAF, Tab 1 at 4 -6, 11 -12. The administrative judge denied corrective action. IAF, Tab 21 at 1, 6 -8. On review, the B oard reversed, awarded corrective action , and remanded the case for further development as to the appropriate scope of relief. Moore v. Department of Veterans Affairs , MSPB Docket No. DA -1221 -13-0213 -W-1, Remand Order, ¶¶ 13-14 (Mar. 10, 2015); Petition for Review File, Tab 14, ¶¶ 13-14. ¶4 On remand, the administrative judge directed the appellant to clarify the relief she was seeking. Moore v. Department of Vetera ns Affairs , MSPB Docket No. DA-1221 -13-0213 -B-1, Remand File (RF), Tab 10 at 1. In respons e, the appellant stated that she sought: (1) attorney fees ; (2) “back pay for the promotion, bonuses, and step increases she would have received if she was not unlawfully transferred”; (3) reinstatement to her PCCPU position “with step increases, bonuses, and promotions received by her co -workers”; (4) “consequential and /or compensatory damages in the amount of $150,000.00”; (5) costs of her relocation from Shreveport to Dallas; (6) unspecified medical costs; and (7) interest on all of the above. RF, Tab 11 at 4 -5. The administrative judge then issued the remand initial decision, directing the agency to provide the appellant with such relief that would place her as nearly as possible in the same situation as she would have been in had the agency not retal iated against her, pay her back pay, with interest, and adjust her benefits with appropriate credits and deductions. RF, Tab 13, Remand Initial Decision (RID) at 3. The administrative judge also advised the appellant that she could seek attorney fees and consequential damages in addendum proceedings. RID at 3 n., 8 -11. ¶5 The appellant has timely petitioned for review. Re mand Petition for Review File, Tab 1. While the appellant does not challenge the administrative judge’s determination as to the merits of her appeal or his guidance that her request for attorney fees should be adjudicated in an addendum proceeding, the appellant asserts that the administrative judge erred in not addressing her request 4 for damages in the remand initial decision issued in t he proceeding on the merits. Id. at 7-8. We disagree. ¶6 Under 5 C.F.R. § 1201.202 (e)(1), “[a] proceeding on the merits is a proceeding to decide an appeal of an agency action ,” that is, to determine whether the appellant should be restored to the status quo ante. Gilbert v. Department of the Interior , 101 M.S.P.R. 238 , ¶ 5 ( 2006 ). Status quo ante relief requires, in most instances, restoring the appellant to the position she occupied prior to the removal action or placing her in a position that is substantially equivalent. Gorny v. Department of the Inte rior, 115 M.S.P.R. 520 , ¶ 6 (2011) ; see Gilbert , 101 M.S.P.R. 238 , ¶ 5 (explaining that an appellant who prevails in an IRA appeal is entitled to cancellation of the retaliatory personnel action , reinstatement to his former position or a substantially equivalent position , back pay , interest on back pay, and other employment benefits he would have received had the action not occurred ). ¶7 In addition, an appellant who prevails on an allegation of reprisal for whistleblowing is entitled to relief that exceeds status quo ante relief, including consequential damages . Samble v. Department of Defense , 98 M.S.P.R. 502 , ¶ 15 (2005). Consequential damages are medical costs, travel expenses and analogous reasonable and foreseeable out -of-pocket expenses or monetary losses th at are causally connected to the whistleblowing reprisal at issue. Bohac v. Department of Agriculture , 239 F. 3d 1334 , 1341 -42 (Fed. Cir. 2001); King v. Department of the Air Force , 119 M.S.P.R. 663 , ¶ 28 (2013). While a “request for consequential . . . damages must be made during the proceeding on the merits ,” 5 C.F.R. § 1201.204 (a)(1), a distinct and separate addendum proceeding is commenced to adjudicate such a request upon a prevailing appellant’s filin g of a motion to that 5 effect, Chambers v. Department of the Interior , 116 M.S.P.R. 17 , 58 (2011); 5 C.F.R. § 1201.204 (d)(1) -(e)(1) .2 ¶8 Such a motion, however, cannot be filed, and no addendum proceeding may commence, until the issuance of the final decision in a proceeding on the mer its. 5 C.F.R. §§ 1201.202 (e)(2), 1201.204(e)(1). Generally, t he final decision in the proceeding on the merits may be an initial decision issued by an administrative judge that becomes final when the Board denie s all petitions for review or because of a mere passage of time if no party petition s for review or requests to vacate the initial decision to accept a settlement . 5 C.F.R. § 1201.113 (a)-(b). ¶9 Here, the administrative judge (1) directed the agency to restore the appellant to the status quo ante in the remand initial decision issued in the proceeding on the merits , and (2) advised the appellant that she could see k attorney fees and consequential damages by commencing addendum proceedings. RID at 3 n., 8 -11. Had the appellant not filed her petition for review, the remand initial decision would have become the Board’s final decision upon the passage of 35 days af ter its issuance, given that the agency elected not to seek review. 5 C.F.R. § 1201.113 (a). However, because the appellant filed a petition for review, the remand initial decision cann ot become final until the petition for review is adjudicated. 5 C.F.R. § 1201.113 (a)-(b). Thus, any addendum proceeding as to the appellant’s request for damages is premature. 5 C.F.R. § 1201.202 (e)(2). ¶10 In light of prematurity of any addendum proceeding, the administrative judge properly declined to adjudicate the appellant’s request for consequential damages until the proceeding on the merits became final. Accordingly, we 2 Consistent with section 1201.204(d)(1), it has been the Board ’s practice to bifurcate prevailing appellants’ requests for consequential dama ges for adjudication in addendum proceedings . See, e.g., Johnston v. Department of the Treasury , 100 M.S.P.R. 78 , ¶¶ 1, 12 (200 5); Pastor v. Department of Veterans Affairs , 94 M.S.P.R. 353 , ¶ 2 (200 3); Carson v. Department of Energy , 92 M.S.P.R. 440 , ¶¶ 1, 14 -15 (200 2), aff’d , 64 F. App’x 234 (Fed. Cir. 2003) . 6 discern no basis to disturb the remand initial decision and deny the petition for review. ORDER ¶11 We ORDER the agency to provide the appellant with relief such that she is placed as nearly as possible in the same situation as she would have been in had the agency not reassigned her in retaliation for whistleblowing. 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. ¶12 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and o ther benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the un disputed amount no later than 60 calendar days after the date of this decision. ¶13 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶14 No later than 30 days after the agency tells the appellant t hat 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 peti tion 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). 7 ¶15 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and docum entation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decisi on in accordance with the attached lists so that payment can be made within the 60 ‑day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUEST CONSEQUENTIAL DAMAGE S You may be entitled to be paid by the agency for your consequential damages, including medical costs in curred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.204. If you believe you meet these requirements, you must file a motion for consequential damages WITHIN 60 CALENDAR DAYS OF THE DAT E OF THIS DECISION. You 8 must file your motion with the office that issued the initial decision on your appeal. NOTICE TO THE PARTIES A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8)  or section 2302(b)(9)(A)(i), (B), (C), or (D).  5 U.S.C. § 1221 (f)(3) .  Please note that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.”  5 U.S.C. § 1214 (f). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropria te for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applic able to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 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. 9 Please read carefully each of the three main possible choic es of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional 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 10 were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative re ceives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 11 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 2001 3 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Boar d’s 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 whistlebl ower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat . 1510. 12 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal 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. Contact information for the courts of appeals can be 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 13 DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805 . Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and c ompleted “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during th e back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, ref unds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that excee ds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payment s/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 a ccordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unabl e 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 conversio n, 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/Personn el Operations at 504 -255-4630.	MOORE_KAREN_DA_1221_13_0213_B_1_FINAL_ORDER_1915752.pdf	2022-04-12	null	DA-1221	NP
4,481	https://www.mspb.gov/decisions/nonprecedential/ALMEIDA_PETER_WHITE_DC_1221_16_0909_W_1_FINAL_ORDER_1913491.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD PETER WHITE ALMEIDA, SR., Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER DC-1221 -16-0909 -W-1 DATE: April 5, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael C. Harman , Esquire, Huntersville, North Carolina, for the appellant. Kay Peterson and Paul A. Raaf , Esquire, Fort Bragg, North Carolina, for the agency. BEFORE Raymond A. Limon , Vice Chai r Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has petitioned for review of the November 7, 2016 initial decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c). 2 File, Tab 8, Initial Decision . For the reasons set forth below, we DISMISS the appeal as settled. ¶2 After the filing of the petition for review, the par ties submitted a document entitled “ NEGOTIATED GLOBAL SETTLEMENT AGREEMENT” signed and dated by the agency on July 25, 2018, and by the appellant on July 28, 2018. PFR File, Tab 9 at 1 3. The settlement agreement provides, among other things, that the app ellant agreed to withdraw the above -captioned appeal in exchange for the promises made by the agency. 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 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 it. See Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) , overruled on other grounds by Delorme v. D epartment of the Interior , 124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce settlement agreements that have b een entered into the record, independent of any prior finding of Board jurisdiction over the underlying matter being settled). ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and do not intend for the agreement to be entered into the record for enforceme nt by the Board. PFR File, Tab 9 . 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 circu mstances. 3 ¶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 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 rev iew the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three m ain possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscou rts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal t o the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither end orses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by fi ling a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and you r representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 5 discrimination based on race, color, relig ion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 6 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no chal lenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review e ither with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Gu ide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation 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 A ll Circuit Review Act, 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 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	ALMEIDA_PETER_WHITE_DC_1221_16_0909_W_1_FINAL_ORDER_1913491.pdf	2022-04-05	null	DC-1221	NP
4,482	https://www.mspb.gov/decisions/nonprecedential/THUNSTROM_DAVID_R_DE_3330_16_0397_I_1_FINAL_ORDER_1913509.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DAVID R. THUNSTROM, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER DE-3330 -16-0397 -I-1 DATE: April 5, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wilmot Collins , Helena, Montana, for the appellant. Chau Phan , Oklahoma City, Oklahoma, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has petitioned for r eview of the September 1, 2016 initial decision , which dismissed his appeal as untimely filed . Petition for Review (PFR) File, Tab 1; Initial Appeal File, Tab 8, 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 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 signific antly 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 AND COMPROMISE AGREEMENT ,” signed and dated by the parties on November 25, 2016. PFR File, Tab 4. The settlement agreement provides, among other things, that the a ppellant agreed to withdraw the above -captioned appeal in exchange for promises made by the agency. Id. at 3. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they u nderstand 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 , ¶¶ 1 1-21 (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 in to 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 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 agree ment 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 Regulation, 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 petiti on 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 incl ude 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 repres ent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits an d requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that f orum for more information. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is 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 ava ilable at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in sec uring pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants befor e the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option app lies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a di sposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 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 yo u have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective website s, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the 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: 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 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 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 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 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal 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 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	THUNSTROM_DAVID_R_DE_3330_16_0397_I_1_FINAL_ORDER_1913509.pdf	2022-04-05	null	DE-3330	NP
4,483	https://www.mspb.gov/decisions/nonprecedential/BOELTER_ALESIA_D_AT_1221_21_0211_W_1_FINAL_ORDER_1913521.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ALESIA D. BOELTER, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency . DOCKET NUMBER AT-1221 -21-0211 -W-1 DATE: April 5, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alesia D. Boelter , Harlem, Georgia, pro se . Karla Brown Dolby , Decatur, Georgia, for the agency . BEFORE Raymond A. Limon, Vice Chair 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 individual right of action (IRA) appeal on the grounds that she failed to show that she engaged in protected activity or made protected disclosures, or that her purported disclosures 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 distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 activity were contributing factors in her probationary termination . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or 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 the petitioner has not established any ba sis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the administrative judge’s analys is of the appellant’s claim that she was retaliated against for refus ing to sign hiring forms , we AFFIRM the initial decision . DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The agency terminated the appellant on May 21, 2020 , from her Human Resources Assistant position during her probationar y period due to her failure to comprehend t he complexity of her work , which resulted in delay s in the hiring and onboarding of new employees.2 Initial Appeal File (IAF), Tab 7 at 12-15. Subsequent to her termination , the appellant filed a complaint with the Office of Special Counsel (OSC) alleging that the agency terminated her, among other 2 The appel lant’s petition for review of the initial decision in Boelter v. Department of Veterans Affairs , MSPB Docket No. AT-315H -20-0568 -I-1, which dismissed the appellant’s appeal of her probationary termination for lack of jurisdiction, will be addressed in a separate decision . 3 retaliatory acts,3 for refusing to “sign off” on hiring forms that she had not verified, name ly form I -9 (U.S. Citizenship and Immigration Services Employment Eligibility Verif ication) and Standard Form (SF) 61 (Appointment Affidavits). IAF, Tab 1 at 19-21. She also argued that she was retaliated against for refusing to attend employee luncheons during the COVID -19 pandemic and for disclosing that employees failed to adhere to social distancing rules . Id. at 24-25. On November 30, 2020, OSC issued a close -out letter ending its inquiry into the appellant’s complaint and notifying the appellant that she may file a n IRA appeal with the Board. Id. at 11. ¶3 On January 28, 2021, the appellant filed the instant appeal, attaching a copy of her OSC complaint and the November 30, 2020 OSC close -out letter . Id. at 1-30. On her appeal form, the appellant reiterated that her termination was the result of whistleblower retalia tion, and indicated that she did not want a hearing.4 Id. at 3-5, 7. ¶4 The administrative judge den ied the appellant’s request for corrective action, finding that, although she established jurisdiction over her appeal, she failed to show that she refused to sign hiring forms that she had not verified or that she disclosed concerns regarding failure to follow social distancing 3 The appellant also alleged she was harassed, denied training, and that her computer work was sabotaged. IAF, Tab 1 at 20. Because the administrative judge correctly found that the appellant failed to show that she engaged in protecte d activity or made protected disclosures, IAF, Tab 20, Initial Decision (ID) at 6, it is unnecessary to determine whether these actions constituted personnel actions under the whistleblower protection statutes . 4 The appellant also claimed in her OSC complaint and during her Board appeal that the agency committed prohibited discrimination by failing to provide her a reasonable accommodation. IAF, Tab 1 at 22-23, Tab 18 at 10-12. Because the appellant’s discrimination complaints do not constit ute protected disclosures or activity falling within the Board’s IRA jurisdiction, the Board lacks authority to review them. Young v. Merit Systems Protection Board , 961 F.3d 1323 , 1327 (Fed. Cir. 2020) (“[I]n an IRA appeal to the Board, the Board’s review is limited to the merits of allegations of violations of the Whistleblower Protection Act. Discrimination claims may not be raised in that context.”) . 4 requirements, and therefore failed to prove by preponderant evidence that she made protected disclosures or engaged in protected act ivity. IAF, Tab 20, I nitial Decision (ID) at 2, 4 -6. The administrative judge then found, applying the knowledge/timing test, that even if the appellant did make protected disclosures or engage in protected activity, she failed to show that such disclosu res or activity contributed to the alleged personnel actions because she did not show that the responsible officials knew of the disclosures or activity. ID at 7-8. ¶5 The appellant filed a petition for review in which she, among other arguments, repeats h er retaliation claim, argues that the administrative judge erred in finding that the employee luncheons she refused to attend were not mandatory and that form I -9 did not require a human resources representative’s signature, and suggests that a timely requ est for an unidentified extension was not granted.5 Petition for Review (PFR) File, Tab 3.6 She also notes that a February 2020 email in the record below demonstrates her refusal to sign off on hiring forms. Id. at 4. The agency filed a response. PFR File, Tab 4. 5 Nothing in the record shows that the administrative judge denied any timely extension request by the appellant. Though on April 8, 2021, the appellant requested a delay of the close of record conference set for April 14, 2021, she was ultima tely able to attend. IAF, Tab 10 at 2, Tab 11 at 1. On April 14, 2021, the administrative judge granted the appellant’s request for a 30 -day suspension of case processing to give her additional time to prepare, allowed the appellant to reopen discovery d uring the suspension period, and postponed the close of record date from April 23 to June 11, 2021. IAF, Tab 8 at 1, Tab 11 at 4. On June 9, 2021, the appellant requested another extension in order to receive and respond to discovery from the agency and gather witness testimony. IAF, Tab 15 at 2-3, 10 -11. The administrative judge granted this additional request, and considered in the initial decision three submissions the appellant filed after the close of record date. ID at 3 n.5 . 6 In PFR File, Tab 3, the appellant corrected format errors in PFR File, Tab 1. We are considering the corrected pleading as the appellant’s petition for review . 5 The evidence showing the appellant’s statements and actions related to signing hiring forms , which the administrative judge failed to consider , do not establish that the appellant engaged in protected activity or made protected disclosures . ¶6 Under the Whistleblower Protection Enhancement Act of 2012, the Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before the OSC and makes nonfrivolous allegations that (1) she made a prote cted disclosure described under 5 U.S.C. § 2302 (b)(8) or engaged in protected activity described under 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302 (a). Salerno v. Department of t he Interior , 123 M.S.P.R. 230, ¶ 5 (2016); see 5 U.S.C. §§ 1214 (a)(3), 1 221(e)(1). Once an appellant establishes jurisdiction over her IRA appeal, she must prove the merits of her claim by preponderant evidence. Salerno , 123 M.S.P.R. 230, ¶ 5. ¶7 The appellant’s reprisal allegations potentially implicate 5 U.S.C. § 2302 (b)(8) and (b)(9)(D). A disclosure is protected under 5 U.S.C. § 2302 (b)(8) if the individual reasonably believes that the information being disclosed evidences a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abu se of authority, or a sub stantial and specific danger to public health or safety. Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 12 (2014). The standard for evaluating the reasonableness of the belief is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable to the employee could reasonably conclude that the agency actions evidence one of these types of wrongdoing. Id. Moreover, the disclosures must be specific and detailed, and not a vague allegation of wrongdoing. Id., ¶ 14. Meanwhile, 5 U.S.C. § 2302 (b)(9)(D) protects employees from retaliation for “ refusing to obey an order that would require the individual to violate a law , rule or regulation .” 6 ¶8 In finding that the appellant failed to prove that she refused to sign hiring forms she did not verify , the admin istrative judge failed to consider two items of evidence . One was a February 27, 2020 email from the appellant’s supervisor memorializing two meetings pertaining to the appellant’s performance. IAF, Tab 7 at 34-35. In the email, t he supervisor explain ed the agency system for processing I-9s, which had human resources personnel documenting a new employee’s identification on I -9s to verify the new employee’s citizenship, and forwarding those I -9s to other employees to input information into USA Staffing, a hiring software application. Id. at 35, 88. In recounting a conversation between herself and the appellant about this system , the supervisor’s email stated : “[w]e discusse d your refusal to complete the I -9, you express [ed] that you were uncomfortable [accepting] information from your co -workers when [new employee orientation] was held in an alternate location . . . unless the co-worker signed the I -9 . . . .” Id. at 35. The email stated that the supervisor told the appellant that she did not understan d the appellant’s reasoning, as the requested steps had been agreed upon by all the other HR assistants “as a team effort to get the work done.” Id.7 The supervisor then stated in the email that the “topic lasted for awhile [sic],” as the appellant explained she could not be certain that the information she was given by other human resources personnel was accurate, and thus reiterated that she wouldn’ t enter the information into USA Staffing unless the employee who received the docu mentation from the new employee signed the I-9. Id. According to the supervisor’s email, this portion of the conversation ended with the supervisor insisting to the appellant that the appellant was responsible for completing onboarding of new employees (i.e. completing th e I-9) in her “service area” and ensuring all her information was 7 This same supervisor provided a declaration in which she said the decision to alter the process had been ma de in February 2020, the same month as the meetings regarding the appellant’s performance. Yet the supervisor averred that the appellant did not disclose the she refused to sign the I -9 or SF -61. 7 consistent and accurate. Id. According to a later declaration from the supervisor, communication about this issue continued between them until at least March 26, 2020, with the supervisor reiterating that it was the appellant’s responsibility to “ensure . . . documents were completed accurately and timely,” the same issue over which the appellant raised the objection . IAF, Tab 16 at 23-24. The other piece of evidence the administrative judge failed to consider was an affidavit of the appellant’s coworker in which, in response to an interrogatory asking whether the appellant spoke with the coworker between January and April 2020 , about not wanting to sign off o n documents that she “did not witness ,” such as I -9s and SF -61s, that are “required to witness [sic] during orientation ,” the coworker responded “[y]es. We did discuss this.” IAF, Tab 16 at 137. ¶9 Together, this evidence establishes that the appellant told her supervisor that she was uncomfortable accepting information about new employees contained on I -9s when her coworkers had not signed the forms ; that she was refus ing to enter information from I -9s into USA Staffing unless her coworkers signed them ; that she did not want to sign off on documents, including I -9s and SF-61s, that she did not witness; and that her concerns were due her uncertainty that information she was being asked to affirm was accurate. Nevertheless, we cannot conclude that her expressions of concern amounted to a disclosure of any potential violation of one of the types of wrongdoing set forth in 5 U.S.C. § 2302 (b)(8). There is no record of her specifying any law, rule, or regulation she believed was violated. See Heining v. General Services Administration , 61 M.S.P.R. 539, 554-55 (1994) (finding an employee’s expressions of disagreement with her supervisors’ directions that did not disclose violations of a specific law, rule, or regulation did not constitute protected disclosures); Padilla v. Department of the Air Force , 55 M.S.P.R. 540, 543 -44 (1992) (finding an employee’s allegations did not constitute whistleblowing when, among other factors, they were v ague and failed to set forth any specific law, rule, or 8 regulation she believed was violated) . Although there is no requirement that an appellant correctly label the category of wrongdoing in a disclosure under 5 U.S.C. § 2302 (b)(8) , Linder , 122 M.S.P.R. 14, ¶ 14, the available evid ence indicates the appellant ’s concerns were based on her uncertainty that information she was given in I -9s was accurate . IAF, Tab 7 at 35. ¶10 If disclosure of wrongdoing was indeed the appellant’s intent in making these statements, her manner of communicating that intent was , as demonstrated by her supervisor’s failure to understand her “logic ,” fatally vague . Id.; see El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 8 (2015) (finding that an employee’s disclosures pertaining to delays in reimbursing his travel expenses only vaguely alleged wrong doing and thus failed to nonfrivolously allege a violation of law, rule , or regulation ), aff’d , 663 F. App’x 921 (Fed. Cir. 2016) . The appellant therefore failed to prove that she made a protected disclosure under 5 U.S.C. § 2302 (b)(8) in her discussions with her supervis or or coworker s about the processing of I-9s. ¶11 A more difficult question is whether the appellant’s refusals to sign hiring forms or otherwise participate in the agency system for processing hiring forms constitute d protected activity under 5 U.S.C. § 2302 (b)(9)(D) which prohibits personnel actions taken against an employee because of the employee’s refusal to obey an order that would require her to violate a law, rule, or regulation . The supervisor’s own language described the appellant’s “refusal to complete the I-9.” IAF, Tab 7 at 34-35. It appear s that the supervisor reiterated multiple times to the appellant that she was responsible to ensure the I -9 was completed . IAF, Tab 7 at 35, Tab 16 at 23-24. Nevertheless, the appellant has not shown that she received and disobeyed a direct order to complete an I -9. Additionally, the appellant has not argued before MSPB that signing the hiring forms or otherwise participat ing in the a gency system for processing hiring forms would have violated a law, rule, or regulation. 9 ¶12 Accordingly, although the administrative judge erred by failing to consider evidence of the appellant’s statements regarding signing hiring forms, he correctly found that the appellant failed to show she engaged in protected activity or made protected disclosures , and his error did not affect the outcome of the appeal . The appellant provides no basis for disturbing the administrative judge’s findings on her claim of retaliation for disclosing failures to adhere to social distancing rules and refusals to attend luncheons during the pandemic . ¶13 Regarding the appellant’s claims of retaliation for disclosing that employees were not adhering to social distancing rules and for her refusal to attend luncheons and other gatherings during the pandemic , the administrative judge’s finding s are correct and should not be disturbed . ID at 6. There is no evidence to show that the appellant made any disclosures or engaged in any ac tivity related to coworkers failing to maintain social distancing or improperly gathering during the pandemic, that would qualify as protected under 5 U.S.C. § 2302 (b)(8) or (9). According to the appellant’s supervisor, the appellant did express to her in the initial stages of the pandemic that she “wanted to be in an office by herself and return to the conference room,” IAF, Tab 16 at 26, but that is the appellant’s only communication on these subjects established by the evidence and we discern no basis to find such a statement protected under 5 U.S.C. § 2302 (b)(8). Further , to the extent that the luncheons durin g the pandemic could constitute a claim that the appellant was being ordered to engage in illegal conduct, the appellant’s supervisor stated in a declaration that all luncheons were voluntary, id. at 26-27, which the appellant offered no evidence to refute . Thus, there was no “order” that the appellant refused to obey in not attending the luncheons, removing any such refusals from the purview of 5 U.S.C. § 2302 (b)(9)(D).8 8 Finally, we recognize the deficiency of the administrat ive judge’s contributing factor analysis because it was limited to an application of the knowledge/timing test. ID 10 NOTICE OF APPEAL RIG HTS9 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113 . You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate 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 be low do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all fili ng time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum . Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judici al review of a final Board order must file a petition for review with the U.S. at 7-8. The Board has held that if an administrative judge determines that an appellant has failed to show contributing factor through the knowledge/timing test, he shall consider other evidence, such as evidence pertaining to the str ength or weakness of the agency’ s reasons for taking the personnel action, whether the whistleblowing was personally directed at the proposing or deciding offici als, and whether these individuals had a desire or motive to retaliate against the appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012 ). However, because we concur with the administrative judge’s finding that the appellant failed to establish protected disclosure s or activity, ID at 6, this deficiency does not affect the outcome of the appeal . 9 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 . 11 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal C ircuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se P etitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit o ur website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any at torney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 12 representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decis ion. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 13 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohi bited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal 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. 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. 10 The original statut ory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allow s appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 14 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/prob ono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be 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	BOELTER_ALESIA_D_AT_1221_21_0211_W_1_FINAL_ORDER_1913521.pdf	2022-04-05	null	AT-1221	NP
4,484	https://www.mspb.gov/decisions/nonprecedential/COURTNEY_GARY_R_AT_0752_20_0254_C_1_FINAL_ORDER_1913576.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD GARY R. COURTNEY, Appellant, v. TENNESSEE VALLEY AUT HORITY, Agency. DOCKET NUMBER AT-0752 -20-0254 -C-1 DATE: April 5, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sterling Deramus , Esquire, Birmingham, Alabama, for the appellant. Stephen Mealor and Jennifer L. Grace , Esquire , Knoxville, Tennessee, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the compliance initial decision, which denied the appellant’s petition for enforcement alleging that the agency was not in compliance with the administrative judge’s order to mitigate the appellant’s removal from a grade 8, Lead Shift Operations Supervisor to a 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 demotion to a nonsupervisory position and a 10 -day suspension. On review, the appellant reargues that his demotion to a grade 6, Maintenance Coordinator position was unreasonable because he was never placed in the position, he was not qualified to serve in that position , and it was specifically created to avoid the agency paying additional back pay for overtime the appellant would have performed as a grade 7, Assistant Unit Operator . Compliance Petition for Review File, Tab 1 at 11 -14. 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 out come 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 compliance initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain revi ew of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice 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 situatio n and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is 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 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 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 decision before you do, then you must file w ith the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, 5 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representati ve receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for 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. 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 P lace, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 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	COURTNEY_GARY_R_AT_0752_20_0254_C_1_FINAL_ORDER_1913576.pdf	2022-04-05	null	AT-0752	NP
4,485	https://www.mspb.gov/decisions/nonprecedential/BOELTER_ALESIA_D_AT_315H_20_0568_I_1_FINAL_ORDER_1913579.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD ALESIA D. BOELTER, Appellant, v. DEPARTMENT OF VETERA NS AFFAIRS, Agency. DOCKET NUMBER AT-315H -20-0568 -I-1 DATE: April 5, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alesia D. Boelter , Harlem, Georgia, pro se. W. Robert Boulware , Esquire, Montgomery, Alabama, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her appeal of her probationary termination. On petition for review, the appellant challenges the administrative judge’s jurisdictional findings . Generally, we grant petitions such as this one only in the following circumstances: the 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 initial d ecision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either t he course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, des pite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully consideri ng the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the follow ing 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 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. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise wh ich option is most appropriate in any matter. 3 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particula r forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with t he U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 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 4 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination . If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar day s after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other prot ected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibite d personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit o r any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit cour t of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D. C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Conta ct information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	BOELTER_ALESIA_D_AT_315H_20_0568_I_1_FINAL_ORDER_1913579.pdf	2022-04-05	null	AT-315H	NP
4,486	https://www.mspb.gov/decisions/nonprecedential/MONTANO_DEBORAH_SF_0432_14_0786_I_2_FINAL_ORDER_1913655.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD DEBORAH MONTANO, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER SF-0432 -14-0786 -I-2 DATE: April 5, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Susan E. Jewell , Esquire, Portland, Oregon, for the appellant. Kimya Jones , Esquire, and Robin M. Fields , Washington D .C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The agency has petitioned for review , and the appellant has filed a cross petition for review, of the December 23, 2016 initial decision in this appeal. Petition for Review (PFR) File, Tabs 3, 12. In addition, the appellant has filed a “Petition for Enforcem ent of Interim Relief Order and Motion to Dismiss 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 (request for enforcement and dismissal) .2 PFR File, Tab 7. For the reasons set forth below, we DISMISS the petition for review , cross petition for review, and request for enforcement and dismissal as settled. ¶2 After the filing of the petition for review, cross petition for review, and request for enforcement and dismissal , the parties submitted a document entitled “SETTLEMENT AGREEMENT” signed and dated by the parties on November 8, 2019. PFR File, Ta b 25. The document provides, among other things, that the parties agreed to withdraw with prejudice their petitions for review and related motions pending before the MSPB . Id. at 10. On November 21, 2019, the parties submitted a joint motion to dismiss as settled the agency’s petition for review, the appellant’s cross petition for review, and the appellant’s request for enforcement and dismissal . Id. at 4. ¶3 Before dismissing a matter as settled, the Board must decide whether the parties have entered int o 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). 2 The Board’s regulations do not provide for petitions for enforcement of interim relief orders; such petitions only apply to final Board decisions. 5 C.F.R. § 1201.182 (a). We have considered the appellant’s filing as a challenge to the agency’s certification that it has provided interim relief and a request to dismiss the agency’s petition for revie w. 5 C.F.R. § 1201.116 (b), (d). 3 ¶4 Here, we find that the parties have entered into a settlement agreement, understand its terms, and do not intend for the agreement to be entered into the record for enforceme nt by the Board. PFR File, Tab 25 . 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 agency’s petition for review, the appellant’s cross petition for review, and the appellant’s request for enforcement and dismissal “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. ¶6 This is the final dec ision 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 t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 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 choice s of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of par ticular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the servic es provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 5 were affected b y an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil act ion with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Me rit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, nation al origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . 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 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 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 ap peals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower repr isal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 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	MONTANO_DEBORAH_SF_0432_14_0786_I_2_FINAL_ORDER_1913655.pdf	2022-04-05	null	SF-0432	NP
4,487	https://www.mspb.gov/decisions/nonprecedential/CENDEJAS_RICARDO_SF_0752_15_0441_B_2_FINAL_ORDER_1912994.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RICARDO CENDEJAS, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER SF-0752 -15-0441 -B-2 DATE: April 4, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Peter J. Horton , Esquire, Westlake Village, California, for the appellant. Alexandra Lynne Abbey , Esquire, and Richard D. Ruppe , Esquire, San Diego, Calif ornia, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the remand initial decision, which dismissed his removal appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review , REVERSE the remand initial decision, and DO NOT SUSTAIN the removal action . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB cas e 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 Opin ion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 BACKGROUND ¶2 The agency removed the appellant, a GS -06 Police Officer, based on charges of failure to follow standard operating procedure and sleeping on duty, and the parties settled his su bsequent Board appeal of that action. Cendejas v. Department of the Navy , MSPB Docket No. SF -0752 -14-0180 -I-1, Initial Decision ( Apr. 2 , 201 4). Pursuant to the last chance agreement (LCA)2 settling that appeal, the agency agreed , in pertinent part, to cancel the appellant’s removal, and he agreed to waive his Board appeal rights such that the agency may effect his removal under the cancelled action “if at any time within the next 24 months his performance, conduct, and/or attendance are less than satisfactory.” Cendejas v. Department of the Navy , MSPB Docket No. SF-0752 -15-0441 -I-1, Initial Appeal File (IAF), Tab 5 at 19 -22. ¶3 In keeping with the parties’ agreement, the agency reassigned the appellant to another duty station , and, at his supervisor’ s request, the appellant volunteered to attend training at the Federal Law Enforcement Tr aining Center (FLETC) in Glynco, Georgia . Id. at 19 -25. The appellant attended the training and experienced several injuries, including a fractured rib; he thereafte r attempted to continue the training , but he failed two exams, which made him ineligible to graduate from the FLETC program and required him to return immediately to his duty station in California . IAF, Tab 5 at 24 ; Tab 6 at 14 -15. The agency subsequentl y reinstated the prior removal action pursuant to the LCA, notifying the appellant that , due to his failure to complete the FLETC training, he had failed to demonstrate acceptable performance and meet a condition of 2 An LCA is a type of settlement agreement in which a d isciplinary or adverse action is held in abeyance in exchange for a waiver of certain statutory rights. See, e.g. , Ferby v. U.S. Postal Service , 26 M.S.P.R. 451 , 453 (1985). Should the employee not comply with the terms of the agreement, the previously proposed action is imposed, and the employee’s right to challenge the action is limited by the terms of the agreement. Id. at 453, 455 -56. 3 employment, and that he therefore had vi olated the terms of the parties’ agreement. IAF, Tab 5 at 19-22, Tab 6 at 11 -13. This appeal followed. ¶4 In his appeal, the appellant argued that his failure to pass the FLETC course did not indicate poor performance and that, because he volunteered for th e FLETC training, it was not a condition of his employment. IAF, Tab 1. Without holding the requested hearing, the administrative judge granted the agency’s motion to dismiss the appeal for lack of jurisdiction, finding that the appellant failed to nonfr ivolously allege that he complied with the LCA or that the agency breached it. IAF, Tab 8, Initial Decision at 1, 5 -7. ¶5 The appellant filed a petition for review of that decision , and the Board found his sworn statement asserting that he had volunteered fo r the FLETC training course, the successful completion of which was not required as a condition of his employment, and his claim therein that he was unable to pass the course based on medical reasons, comprised a nonfrivolous allegation that he did not bre ach the LCA. Cendejas v. Department of the Navy , MSPB Docket No. SF-0752 -15-0441 -I-1, Remand Order (Feb. 18, 2016). Accordingly, we remanded the appeal for a jurisdictional hearing to resolve the issue of the appellant’s compliance with the LCA. Id.; see Williams v . Department of the Treasury , 52 M.S.P.R. 344 , 347 (1991) (finding that, when an appellant makes a nonfrivolous allegati on of fact that he did not breach an LCA, a jurisdictional hearing is warranted to resolve the issue of compliance). ¶6 After dismissing the appeal without prejudice subject to automatic refiling, the administrative judge held a hearing and found that attendi ng the FLETC training was a condition of the appellant’s employment and that his failure to successfully complete the training was a performance issue that was both contemplated by the LCA and reflected less than satisfactory performance. Cendejas v. Depa rtment of the Navy , MSPB Docket No. SF -0752 -15-0441 -B-2, Remand File , Tab 1 ; Tab 5, Remand Initial Decision (RID) at 5 -10. Thus, she found that the appellant failed to establish by preponderant evidence that he 4 complied with the LCA when he performed less than satisfactorily by failing t he FLETC training course and dismissed the appeal for lack of jurisdiction. RID at 10. ¶7 In his petition for review, the appellant reiterates that he volunteered for FLETC training and argues that , because the agency did not discipline any of his colleagues who elected not to attend FLETC training, it was not mandatory. Remand Petition for Review ( RPFR) File, Tab 1 at 8 -10. He also argues that he was in good standing when he left for FLETC training and that he had no notice that it could impact his career. Id. at 10 -12. He contends that , because his training record made him eligible to waive the FLETC training, which th e agency ultimately did for tenured officers like him, it was only mandatory for new hires . Id. at 12 -17. Lastly, the appellant asserts that , if he had simply quit the FLETC training when he was injured, he would not have been removed for poor performance. Id. at 17-18. The agency responds in opposition to the appellant’s petition for review. RPFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶8 The appellant bears the burden of proving that an appeal is within the Board’s jurisdiction. 5 C.F.R. § 1201.56 (b)(2)(i)(A) . The Board lacks jurisdiction over an action taken pursuant to an LCA in which the appellant waives his Board appeal rights, unless he shows that the waiver is unenforceable. E.g., Smith v. Department of the Interior , 113 M.S.P.R. 592 , ¶ 6 (2010). To establish that the waiver of appeal rights in an LCA is unenforceable, the appellant must show that: (1) he complied with the LCA; (2) the agency materially breached the LCA or acted in bad faith; (3) he did not voluntarily enter into the LCA; or (4) the LCA resulted from fraud or mutual mistake. Id. When an employee raises a nonfrivolous factual issue of compliance with an LCA, the Board must resolve that issue before addressing the scope and applicability of a waiver of appeal rights. Stewart v. U.S. Postal Service , 926 F.2d 1146 , 1148 5 (Fed. Cir. 1991). As noted above, the Board remanded the appeal because it found that the appellant made nonfrivolous allegations that he had complied with the LCA. For the following reasons, we find that the appellant proved by preponderant evidence that he complied with the LCA and that the agency acted in bad faith in its execution of the agreement . ¶9 As noted above, the appellant reiterates on review that his eligibility for a waiver of the FLETC training course means that , in his case, the course was voluntary. RPFR File, Tab 1 at 12-13. An agency training office r, who was responsible for ensuring that members of the appellant’s unit were in compliance with their training requirements, testified that he knew that the appellant attended FLETC training on a voluntary basis “[b]ecause I was there when he voluntee red to go.” Hearing Transcript (HT) at 13 . More importantly, t he training officer also testified that FLETC training was never mandatory for tenured officers like the appellant , who was eligible for a waiver from the requirement . HT at 16, 18 . He also testified that none of the 29 waiver re quests he submitted were denied and, as a result, the agency had sent none of the other tenured officers assigned to the appellant’s duty stat ion to the FLETC training . HT at 19. ¶10 Even though the training officer testified that he did not personally learn of the waiver policy until April 2015 , his interpretation of the policy was that the appellant would have remained eligible for the waiver even after he failed the FLETC training course in 2014. HT at 16, 23. Moreover, he testified that, if the appellant still were employed there once the policy became known , he “would have done a waiver for him and sent it up for approval.” HT at 23. Despit e the training officer’s testimony that neither he nor his command staff were aware of the waiver policy in 2014 when the appellant failed the FLETC course, the record reflects that the agency implemented the pertinent training instruction, Commander Nav y Installations Command Instruction 5530.14A, on May 29, 2013, and that it explicitly provides for the waivers described in the training officer’s testimony. IAF, Tab 5 at 37, 40; HT at 14. Because the record 6 establishes that the appellant was eligible for and, as the agency training officer testified, the appellant more likely than not would have received a waiver of the FLETC training requirement, we find that attending the FLETC training was not a condition of employment and, consequently, that his failu re to pass the training did not reflect less than satisfactory performance. Accordingly, we find that the appellant complied with the settlement agreement . ¶11 Moreover, b ecause a n LCA is a contract, and an implied term of every contract is that each party will act i n good faith towards the other, a party may breach an LCA by acting in bad faith. Posey v. Department of Defense , 106 M.S.P.R. 472 , ¶ 8 (2007) . Contracts impose on the parties thereto a duty to do everything reasonably nece ssary to facilitate performance , and the Board will enforce an appellant’s rights derived from an LCA . See Link v. Department of Treasury , 51 F.3d 1577 , 1582 (Fed. Cir. 1995) . Accordingly, we find that the good faith implementation of the LCA here would require the agency to apply its waiver policy. ¶12 Based on the forego ing, we find that the administrative judge erred in finding that the appellant failed to show that he complie d with the LCA when he failed the FLETC training course and that the waiver portion of the LCA deprives the Board of jurisdiction over this appeal. We find that the appellant established his compliance with the LCA insofar as his performance was satisfactory. As the alleged violation of the LCA was the sole basis for the agency’s action terminating the appellant’s employment and, absent the waiver of appeal rights associated with the LCA, this removal action was clearly within the Board’s adverse action jurisdiction, we find that the Board has jurisdiction over his removal appeal and that the agency improperly removed him pursuant to the LCA. See Smith , 113 M.S.P.R. 592 , ¶ 12. 7 ORDER ¶13 We ORDER the agency to cancel the appellant ’s removal action and to reinstate him to his former pos ition effective December 19, 2014. See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this ac tion no later than 20 days after the date of this decision. ¶14 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service regulations, as appropriate, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency req uests 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 dec ision. ¶15 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶16 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 peti tion 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 agen cy 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). ¶17 For agencies whose payroll is adm inistered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision 8 are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within t he 60 -day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion for attorney fees and costs with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how cour ts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 3Since the issuance of the initial decision in this matter, the Board may have updated the notice 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 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a pet ition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1) (A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained with in the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informa tion regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 10 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 11 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D) ,” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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). 4The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018 , permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court 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.uscourt s.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endor ses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805 . Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the ba ck pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provid e a statement in the ticket comments as to why the docume ntation is not applicable: ☐ 2) Settlement agreement, administrative dete rmination, arbitrator award, or order. ☐ 3) Signed and completed “Empl oyee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed , there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decisi on. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to incl ude Overtime, Night Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement (if applicable). 2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings document ation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of t he period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) a. Must provide same data as in 2, a -g above. b. Prior to conversion computation must be provided. c. Lump Sum amount of Settlement, and if taxable or non -taxable. If you have any questions or require clarification on the above, please contact NFC’s Payroll/Personnel Operations at 504 -255-4630.	CENDEJAS_RICARDO_SF_0752_15_0441_B_2_FINAL_ORDER_1912994.pdf	2022-04-04	null	SF-0752	NP
4,488	https://www.mspb.gov/decisions/nonprecedential/FAVREAU_MICHAEL_LUCON_SF_0752_11_0273_X_1_FINAL_ORDER_1913050.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MICHAEL LUCON FAVREA U, Appellant, v. DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER S SF-0752 -11-0273 -X-1 SF-0752 -11-0273 -C-2 DATE: April 4, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 David P. Clisham , Esquire, San Francisco, California, for the appellant. David Michael Tucker and Bernard Lee Gotmer , Fort Hunter Liggett, California, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 This compliance proceeding was initiated by the appellant’s April 22, 2014 petition for enforcement of the Board’s Febru ary 21, 2014 Final Order in Favreau v. Dep artment of the Army , MSPB Docket No. SF -0752 -11-0273 -I-1. On May 6, 2016, the administrative judge issued a compliance 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 requi red to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 appellant’s petition for enforcement and finding the agency in partial noncompliance with the Board’s February 21, 2014 Final Order. Favreau v. Departmen t of the Army , MSPB Docket No. SF-0752 -11-0273 -C-2, Refiled Compliance File, Tab 24, Compliance Initial Decision (CID) . For the reasons discussed below, we now find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On January 18, 2011, the appellant appealed his removal from his Police Officer position. Favreau v. Department of the Army , MSPB Docket No. SF-0752 -11-0273 -I-1, Initial Appeal File (IAF), Tab 1. On Febr uary 3, 2012, the administrative judge issued an initial decision reversing the appellant’s removal and ordering the agency to restore the appellant effective January 1, 2011. IAF, Tab 48, Initial Decision . Following the agency’s petition for review, the Board issued a February 21, 2014 Final Order affirming the initial decision as modified and again ordering the agency to reverse the appellant’s removal and restore him effective January 1, 2011. Favreau v. Department of the Army , MSPB Docket No. SF -0752 -11-0273 -I-1, Petition for Review File, Tab 11, Final Order . In the final order, the Board ordered the agency to pay the appellant the correct amount of back pay, interest on back pay, and other req uired benefits no later than 60 calendar days after the d ate of the final order. Id. at 13 -14. ¶3 On April 22, 2014, the appellant filed a petition for enforcement of the Board’s February 21, 2014 Final Order. Favreau v. Department of the Army , MSPB Docket No. SF -0752 -11-0273 -C-1, Compliance File , Tab 1. He asserted that his back pay award was deficient because it did not appear to place him in the status quo ante, and because the agency failed to provide him with a narrative statement explaining his back pay. Id. at 16 -17. The appellant also stated in the petition that the agency reinstated him to his position on February 27, 2012, at which point it immediately placed him on administrative leave and then removed him for a second time on April 30, 2012. Id. at 6. 3 ¶4 On May 6, 2016, the administrative judge i ssued a compliance initial decision granting the petition for enforcement in part. The administrative judge found that the agency was in compliance as to: (1) the appellant’s gross back pay and applicable deductions, exclusive of overtime; (2) the appell ant’s salary and benefits after his reinstatement; (3) the appellant’s lump sum annual leave payment; (4) the agency’s offsets for “special pay” ; (5) restoration of the appellant’s leave; (6) the appellant’s overtime pay for the year 2011; (7) the appellan t’s promotion status; (8) payment for the appellant’s uniform allowance; and (9) rescission of the appellant’s removal and reinstatement. CID at 6-13. The administrative judge found that the agency was not in full compliance, however, because it failed t o sufficiently explain its calculations for the appellant’s interest payments, failed to explain a discrepancy in the amount of interest owed to the appellant, and failed to submit sufficient documentation establishing that it paid him the overtime due to him for the first four pay periods of 2012. CID at 4-6, 10 -11. Accordingly, the administrative judge ordered the agency to provide evidence that clearly set forth the full amount of interest due to the appellant along with how that amount was calculated and provide evidence demonstrating that the agency paid the appellant overtime earned during the first four pay periods of 2012 at the same or greater rate per pay period as the agency paid him for overtime earned in 2011. CID at 14. ¶5 On June 10, 2016, the appellant filed a petition for review of the compliance initial decision. Favreau v. Department of the Army , MSPB Docket No. SF -0752 -11-0273 -C-2, Compliance Petition for Review (CPFR) File , Tab 1 . In the petition for review, the appellant challenged the administrative judge’s findings regarding his back pay, his post -reinstatement salary, his lump sum leave payment, his withholdings for “Special Pay,” his overtime pay, and his promotion status. CPFR File, Tab 1 at 4 -8. The appellant did not challenge t he administrative judge’s findings on his annual leave and time -off award, his 4 uniform allowance, or the rescission of his removal and reinstatement documentation. CPFR File, Tab 1. ¶6 On June 29, 2016, the agency submitted a statement of compliance pursuant to 5 C.F.R. § 1201.183 (a)(6)(i). Favreau v. Department of the Army , MSPB Docket No. SF -0752 -11-0273 -X-1, Compliance Referral File (CRF), Tab 2. In its statement, the agency included e vidence of its interest payment calculations, as well as a narrative summary , which described its interest calculations and explained the apparent discrepancy in the interest payments. Id. at 1-2. The agency also included in its statement an explanation, supported by exhibits, of its discovery that the appellant had not been paid the requisite amount of overtime for the first four pay periods of 2012. Id. at 2 -3. Per the agency, the methodology used to calculate the appellant’s overtime pay for 2011 led to a conclusion that the appellant was owed an additional 4.5 hours of overtime pay for the first four pay periods of 2012. Id. The agency’s statement further indicated that a payment for the additional overtime hours had inadvertently been included wit h his paycheck for the pay period ending May 28, 2016, and as a result , excluded any required associated interest or night differential payments. Id. The agency thus indicated that it had submitted a request to correct its deficiencies for the appellant’ s additional overtime for the first four pay periods of 2012 and needed additional time to show the correct payments had been made. Id. On October 28, 2016, the agency submitted a supplement to its June 29, 2016 statement demonstrating that it paid an ad ditional 5.5 hours of overtime to the appellant, along with payments for night differential and interest.2 CRF, Tab 3 at 4-5. 2 The agency stated that this payment was actually made in addition to the overtime payment included in his paycheck for the pay period ending May 28, 2016, but that the agency would not seek any f urther corrections to avoid unfairly penalizing the appellant. CRF, Tab 3 at 2. The agency also noted that the appellant was mistakenly paid 5.5 hours of overtime rather than the 4.5 hours he was owed but declined to seek correction for the 1 hour of ove rpayment. CRF, Tab 2 at 3. 5 ¶7 On December 15, 2016, the Board issued a nonprecedential order, which denied the appellant’s petition for review and affirmed the compliance initial decision.3 Favreau v. Department of the Army , MSPB Docket No. SF -0752 -11- 0273 -C-2, Order (Dec. 15, 2016); CPFR File, Tab 5, Compliance Order . The Board determined that the administrative judge correctly found that the agency was in compliance concerning the appellant’s back pay, exclusive of overtime, for the period of time in which the appellant was removed, and also was in compliance concerning his salary after he was reinstated but before his second removal. Id. at 4-5. The Board referred the matter to the Office of General Counsel to obtain compliance. ¶8 On January 3, 2017, the a ppellant submitted a response to the agency’s statement of compliance. CRF, Tab 4. He asserted that the agency’s statement of compliance and supplemental statement did not demonstrate compliance because they contained allegedly confusing narratives and made several mistakes , and because the agency did not provide the appellant with draft co pies of his corrected time sheets and remedy tickets prior to submitting them for payment. Id. at 3. The appellant did, however, concede that the agency’s October 28, 2016 supplemental statement may have been enough to demonstrate compliance , but for the agency’s failure to provide him with this information at the beginning of the compliance proceedings. Id. at 6. The appellant also included in his submission an objection to the Board’s finding from its December 15, 2016 Order that the agency’s submitted spreadsheets and narratives were sufficient to demonstrate compliance on the issues raised in the appellant’s petition for review . Id. at 3-4. ¶9 On July 25, 2017, the Board issued an order requiring further information from the agency. CRF, Tab 5 at 3. The Board explained in the order that the agency’s pleadings throughout the compliance litigation appeared to contain 3 The Board’s December 15, 2016 Compliance Order is incorporated into this Final Order by reference. 6 inconsistent explanations regarding the appellant ’s overtime pay for the first four pay periods of 2012. Id. at 1-3. The agency’ s original explanation was that the appellant was sufficiently compensated for overtime for 2012 because he was paid 252 hours of overtime for 2012 as a result of separate litigation related to his April 26, 2012 removal, occurring at MSPB Docket Number SF -0752 -12-0547 -I-6 (Removal Appeal) and that 252 hours was more than he was otherwise entitled to for the year 2012. C RF, Tab 2 at 8. Its revised explanation was that it had recalculated the appellant’s overtime for the first four pay periods of 2012 and determined that he was owed another 4.5 hours of overtime. Id. at 5 -6. Accordingly, the Board ordered the agency to explain the discrepancy in its explanations to demonstrate compliance. CRF, Tab 5 at 3. ¶10 On August 8, 2017, the agency responded t o the Board’s o rder. CRF, Tabs 6-8. The agency indicated in its response that it abandoned its prior assertion relating to the 252 overtime hours, which arose out of an improper conflation of the appellant’s 2011 compliance litigation with his 2012 removal appeal litigation. CRF, Tab 6 at 4-6. The agency explained that it reached its new conclusion regarding the appellant’s overtime hours by now relying solely on the administrative judge’s order to specifically calculate the overtime hours owed to the appel lant for the first four pay periods of 2012, and determined using that methodology that the appellant was owed an additional 4.5 hours of overtime. Id. at 6. The agency included supporting documentation with its response to verify its explanation. CRF, Tabs 6 -8. ¶11 On August 22, 2017, the appellant replied to the agency’s response , asserting that the agency’s supporting docume ntation did not appear to demonstrate compliance in a comprehensible manner . CRF, Tab 9 at 5 . He further repeated his prior objecti ons to the Board’s December 15, 2016 finding that the agency was in compliance as to the appellant’s back pay for the period of time between February 26 -April 30, 2012. Id. at 4-5. 7 ANALYSIS ¶12 When the Board finds a personnel action unwarranted or not sustai nable, 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. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011). An agency’s assertions of compliance must include a clear explanation of its compliance actions supporte d by documentary evidence. Id. 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). ¶13 The agency’s submissions have provided evidence that the agency is now in compliance with the Board’s Order. The agency provided su fficient evidence of its interest calculations for all back pay owed to the appellant, including the interest owed for his overtime pay for the first four pay periods of 2012. CRF, Tab 2 at 4 -6, 10 -29. The agency also satisfactorily demonstrated that it paid the appellant the correct amount of overtime pay for the first four pay periods of 2012 and provided the necessary narrative explanation and evidence in support. Id. at 5 -6, 30 -39; CRF, Tab 3 at 4 -16. We have considered the appellant’s objec tions to the agency’s pleadings but do not find any of his arguments to be meritorious. The appellant has not identified any requirement that he should have been given draft copies of his corrected time sheets and remedy tickets before the agency paid him back pa y, and he already has conceded that the agency’s submitted evidence of compliance appea red to be sufficient. CRF, Tab 4 at 6. Finally, to the extent that the appellant is merely repeating arguments he already raised in his petition for review, these argu ments were already considered and rejected by the Board in its December 15, 2016 Order. 8 ¶14 Accordingly, in light of the agency’s evidence of compliance, the Board finds the agency in compliance and dismisses the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183 (c)(1)). NOTICE TO THE APPELLANT REGARD ING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set out at title 5 of the United States Code (5 U.S. C.), sections 7701(g), 1221(g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a mo tion for attorney fees WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees motion with the office that issued the initial decision on your appeal. NOTICE OF APPEAL RIG HTS4 You may obtain review of this final 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 appropriate for your situation and the rights descri bed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow al l 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 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one appl ies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of 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 Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 10 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful 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 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: 11 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of compete nt jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of compete nt jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 12 If you submit a petition for judi cial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.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 BO ARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	FAVREAU_MICHAEL_LUCON_SF_0752_11_0273_X_1_FINAL_ORDER_1913050.pdf	2022-04-04	null	S	NP
4,489	https://www.mspb.gov/decisions/nonprecedential/CHAMBERS_JESSIE_J_AT_0831_21_0184_I_1_FINAL_ORDER_1913058.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JESSIE J. CHAMBERS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER AT-0831 -21-0184 -I-1 DATE: April 4, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jessie J. Chambers , Fayetteville, Georgia, pro se. Trina Janifer , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the final decision of the Office of Personnel Management (OPM) finding that the appellant was ineligible for a deferred annuity under the Civil Service Retirement System (CSRS) . For the reasons set forth below, the appellant’s 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or 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 petition for review is DISMISSED as un timely filed by 1 day without good cause shown. 5 C.F.R. § 1201.114 (e), (g). DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The appellant filed a Board appeal challenging OPM’s final decision denyi ng his request for deferred annuity benefits under the CSRS. Ini tial Appeal File (IAF), Tab 1. On June 30, 2021 , the administrative judge issued an initial decision upholding OPM’s final decision. IA F, Tab 11, Initial Decision (ID) . The administrative judge notified the appellant that the initial decision would become final on August 4, 2021 , unless a petition for review was filed by that date. ID at 4. On August 5, 2021, the appellant submitted a filing to the regional office, which was docketed as a petition for review of the initial decision. Petition for Review (PFR) File, Tab s 1-2. This pleading did not address any timeliness issue. PFR File, Tab 1. The Office of the Clerk of the Board advised the appellant that the petition for review was unt imely filed and instructed him to file a motion to establish good cause for the untimely filing . PFR File, Tab 2 at 1-2. The appellant failed to respond to the Clerk’s notice . Under these circumstances, the Board has declined to find good cause for a waiver of the filing deadline. See Smith v. Department of the Army , 105 M.S.P.R. 433 , ¶ 6 (2007) (finding the appellant failed to show good cause for his 1 -day delay in filing his petition for review when he failed to respond to the Clerk’s notice instructing him to establish good cause for the untimely filing ). Accordingly, we dismiss the petition for review as untimely filed with no good cause shown . 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 entitlement to a deferred annuity. 3 NOTICE OF APPEAL RIG HTS2 You may obtain review of this final decisi on. 5 U.S.C. § 7703 (a)(1). By statute, the na ture of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights des cribed below do not represent a statement of how courts will rule regardin g which cases fall within their jurisdiction. If you wish to seek review of this 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). 2 Since the issuance of the initial decision in this matter, the Board may have updated the not ice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal 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 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 5 after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 revi ew pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Fed eral Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W . Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” wh ich is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3 The original statutory provision that provided for judicial review of certain whistleblower claims by a ny court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whis tleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 7 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal 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 representat ion in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CHAMBERS_JESSIE_J_AT_0831_21_0184_I_1_FINAL_ORDER_1913058.pdf	2022-04-04	null	AT-0831	NP
4,490	https://www.mspb.gov/decisions/nonprecedential/PIERRE_MAURICE_W_NY_0752_15_0240_C_1_FINAL_ORDER_1913064.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MAURICE W. PIERRE, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER NY-0752 -15-0240 -C-1 DATE: April 4, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Louis D. Stober , Esquire, Garden City, New York, for the appellant. J. Douglas Whitaker , Esquire, Omaha, Nebraska, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the compliance initial decision, which dismissed his petition for enforcement of a settlement agreement for lack of jurisdiction . Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings 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 compliance initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 As the administrative judge found in the compliance initial decision, t he appellant filed a Board appeal alle ging that he involuntarily retired from his Special Agent position with the agency . Pierre v. Department of Homeland Security , MSPB Docket No. NY -0752 -15-0240 -C-1, Compliance File (CF), Tab 9, Compliance Initial Decision (CID) at 2. The parties reached a settlement resolving the appeal . Pierre v. Department of Homeland Security , MSPB Docket No. NY -0752 -15-0240 -I-2, Appeal File (I -2 AF), Tab 21 at 6 -11. The administrative judge issued an initial decision dismissing the appeal as settled . I-2 AF, Tab 22, Initial Decision (ID) at 1-2. She stated that the parties agreed not to make the settlement agreement enforceable by the Board, and thus, the agreement was accepted into the record only to document the disposition of the appeal. ID at 2. ¶3 The appellant t hereafter filed a petition for enforcement with the Board alleg ing that the agency breached the terms of the settlement agreement. CF, Tab 1. In a show cause order, the administrative judge informed the appellant that the Board may not have jurisdiction over his petition for enforcement and 3 ordered him to file evidence and argument on the jurisdictional issue . CF, Tab 4. The appellant responded. CF, Tab 7. ¶4 The administrative judge issued a compliance initial decision dismissing the petition for enforcement for lack of jurisdiction . CID at 1-3. Specifically, she found that, because the settlement agreement was not entered into the record for enforcement purposes due to an unresolv ed issue of Board jurisdiction over the underlying appeal, the Board lacks the authority to enforce the agreement . CID at 2. She also found that, although the appellant indicated that he wished to file a petition for review concerning the breach issue , a petition for review must be filed with the Clerk of the Board. CID at 1 n.1. She further found that, to the extent he was attempting to file a petition for review with the field office, such a motion was denied . Id. ¶5 The appellant has filed a petition f or review of the compliance initial decision. Petition for Review (PFR) File, Tab 1. He reasserts that the agency breached the terms of the settlement agreement by providing an inadequate “good guy” letter. Id. at 5-7; CF, Tab 1 at 3 -4. In addition, he requests that either the Board grant his petition for enforcement and reverse the compliance initial decision, or “the Petition be deemed a new Petition for a violation of [his] rights as expressed in the settlement agreement.” PFR File, Tab 1 at 5. He also submits his response to the administrative judge’s show cause order with exhibits and the compliance initial decision . Id. at 11-34.2 The agency has filed a response. PFR File, Tab 3. 2 We need not consider these submissions because they do not constitute new evidence . See Meier v. Department of the Interior , 3 M.S.P.R. 247 , 256 (1980 ) (finding that evidence that is already a part of the record is not new); see also 5 C.F.R. § 1201.115 (d) (specifying that the Board may grant a petition for review based on new and material evidence). Furthermore , these submissions are immaterial to whether the Board has jurisdiction over the appellant’s pet ition for enforcement, and thus, do not warrant a different outcome than that of the compliance initial decision. 4 ¶6 For the following reasons, we agree with the administrative jud ge’s finding that the Board lacks jurisdiction over the appellant’s petition for enforcement.3 CID at 2 -3. It is well settled that the Board lacks authority to enforce a settlement agreement that was not entered into the Board’s record for enforcement pu rposes. Barker v. Department of Agriculture , 100 M.S.P.R. 695 , ¶ 6 (2006) ; Wade v. Department of Veterans Affairs , 61 M.S.P.R. 580 , 583 (1994). Here , the settlement agreement is silent regarding whether it should be entered into the record for purposes of en forcement by the Board , and the appellant does not dispute that , during the settlement conference, the administrative judge informed the parties that the settlement agreement would not be entered into the record for enforcement purposes and that the partie s agreed to such . I-2 AF, Tab 20, Compact Disc (settlement conference recording) . Thus, the agreement is not enforceable by the Board. ¶7 The appellant has reiterated his request to file a petition for review regarding an alleged breach of the agreement by the agency . PFR File, Tab 1 at 5, 7-8; CF, Tab 7 at 4 -6. Because the appellant neither argues that the administrative judge erred in dismissing the underlying appeal as settled nor challenges the validity of the settlement agreement, his request is in substance a petition for enforcement , and thus, it provides no reason to disturb the compliance initial decision . See Diamond v. U.S. Postal Service , 51 M.S.P.R. 448 , 450 (1991) (construing the appellant’s filing as a petition for enforcement when the appellant alleged that the agency breached the settlement agreement ), aff’d , 972 F.2d 1353 (Fed. Cir. 1992) (Table) ; see also Barker , 100 M.S.P.R. 695 , ¶ 4 3 While th e petition for review of the compliance initial decision was pending, the Board held in Delorme v. Department of the Interior , 124 M.S.P.R. 123 , ¶ 21 (2017), that the Board has enforcement authority over settlement agreements that have been entered into the reco rd for that purpose, independent of any prior finding of Board jurisdiction over the underlying matter appealed . Here, because the settlement agreement was not entered into the record for enforcement purposes, Delorme has no bearing on the instant case. 5 (stating that a party may file a petition for review challenging the validity of a settlement agreement, regardless of whether it has been entered into the record for enforcement, if the party believes that the agreement is unlawful, involuntary, or the result of fraud or mutual mistake). ¶8 Accordingly, we find that the administrative judge properly dismissed the appellan t’s petition for enforcement 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 summar y of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono re presentation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC revie w of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so , you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before 7 you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If t he action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/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, th e address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 8 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices des cribed in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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 m ust receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 If yo u are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be 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	PIERRE_MAURICE_W_NY_0752_15_0240_C_1_FINAL_ORDER_1913064.pdf	2022-04-04	null	NY-0752	NP
4,491	https://www.mspb.gov/decisions/nonprecedential/TORRES_SERGIO_I_DA_0752_07_0066_C_2_FINAL_ORDER_1913065.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SERGIO I. TORRES, Appellant, v. DEPARTMENT OF HOMELA ND SECURITY, Agency. DOCKET NUMBER DA-0752 -07-0066 -C-2 DATE: April 4, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lorenzo W. Tijerina , Esquire, San Antonio, Texas, for the appellant. Kevin W. Gotfredson , Edinburg, Texas, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the November 7, 2016 compliance initial decision, which denied his second petition for enforcement of the February 12, 2007 settlement agreement resolving his removal appeal . Generally, we grant petitions such as this one only in the following 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 circumstances: the initial decision conta ins 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 peti tioner’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 compliance initial decision, which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 Effective October 11, 2006, the agency removed the appellant from his position as a Border Patrol Agent with one of its compone nts, the U.S. Cus toms and Border Protection (CBP), for failure to report accurate information on his time and attendance records and lack of candor . Torres v. Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -I-1, Initial Appeal File (IAF) , Tab 4, Subtab 4(b) . He appealed his removal to the Board. IAF, Tab 1. During the pendency of the appeal, on February 12, 2007, the parties entered into a settlement agreement . IAF, Tab 15. In relevant part, the set tlement agreement provided that the appellant would withdraw his appeal and submit a written resignation on a Standard Form (SF) 52. Id. at 1-2. In exchange, CBP agreed to cancel his removal, replace the SF -50 in his Official Personnel File (OPF) with one showing that he resigned for “pers onal reasons,” and remove all documentation concerning his removal from his OPF. Id. at 2. The administrative judge issued an initial decision accepting the settlement agreement 3 into the record for purposes of enforcement and dismissing the appeal as set tled. IAF, Tab 21, Initial Decision at 1-2. ¶3 The appellant filed his first petition for enforcement on April 22, 2008, alleging that CBP breached the settlement agreement by allowing its employees to disclose information regarding his removal to potential employers. Torres v. Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -C-1, Compliance File ( CF), Tab 1 . The administrative judge denied this first petition for enforcem ent, and the appellant filed a petition for review . CF, Tab 10 , Compliance Initial Decision ; Torres v. Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -C-1, Compliance Petition for Review File, Tab 1. On review , the Board noted that the s ettlement agreement provided fo r cancelling the appellant’ s removal action and a clean reco rd, i.e., replacing t he SF -50 showing his removal with one showing that he resigned , and expunging all references to the removal in his OPF . Torres v. Department of Homeland Security , 110 M.S.P.R. 482, ¶ 12 (2009) . The Board found, therefore, that the settlement agreement required CBP to act as if the appellant had a clean record and that its communications with third parties must reflect what the replacement SF-50 showed . Id. The Board further found that the settlement agreement precluded CBP from disclosing the circumstances of his removal to third parties. Id. The Board remanded the appeal for further adjudication on the issue of breach and instructed the administrative judge to also determine whether the appellant had timely filed the petition for enforcement. Id., ¶¶ 13-14. ¶4 In the remand compliance initial decision, the administrative judge found that the app ellant failed to timely file his first petition for enforcement. Torres v. Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -B-1, Remand File, Tab 7 , Remand Compliance Initial Decision (RCID) at 3-7. She further found that the appellant failed to prove that CBP in fact furnished any negative information about him to the potential employer and that, in any event , his April 24, 2007 waiver authorizing the agency to furnish the potential 4 employer with “any and all information” released the agency from its nondisclosure obligation. RCID at 9-11. The appellant petitioned for review of the remand compliance initial decis ion, which the Board denied. Torres v. Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -B-1, Final Order (Sept. 10, 2009) . ¶5 In 2016, the appellant filed a second petition for enforcement of the February 12, 2007 settlement agreement arguing that CBP breached the agreement by providing negative and false information regarding his 2006 removal to another agency component, Immigration and Customs Enforcement (ICE), in connection with his application for a Deportation Officer position there . Torres v. Department of Homeland Security , MSPB Docket No. DA-0752 -07- 0066 -C-2, Compliance File (C -2 CF), Tab 2 at 5-7.2 As proof of the breach, the appellant submitted a June 13, 2016 letter of inquiry (LOI) from ICE seeking information regarding, among other things, his 2006 removal from CBP.3 Id. at 18-20. ¶6 The agency responded that CBP had fully complied with the terms of the settlement agreement , including deleting from his OPF documentation related to the appellant’s 2006 removal , and that it had n ot provided any information regarding the appellant to ICE . C-2 CF, Tab 5 at 6-8. In support of its contention that it has complied with the clean record provision, the agency provided a sworn 2 The appellant also alleged that the agency’s actions violated a 2005 settlement agreement, which had resolved his suspension appeal. C -2 CF, Tabs 2, 7. The administrative judge docketed a separat e petition for enforcement in that matter, which she denied in a November 1, 2016 compliance initial decision. Torres v. Department of Homeland Security , MSPB Docket No. DA -0752 -05-0527 -C-3, Compliance File, Tabs 1-2, 9, Compliance Initial Decision at 1 -5. Neither party filed a petition for review of that decision, and it is now final. 3 Specifically, the LOI stated the following: “[r] ecords reflect you were originally terminated from [CBP] on or about October 11, 2006, in reference to smuggling undocume nted aliens in to [sic] the United States; however, through a settlement agreement, you were allowed to submit your resignation on or about October 13, 2006.” C-2 CF, Tab 2 at 18. 5 declaration from a Labor and Employee Relations Specialist wh o attested that she reviewed the appellant’s OPF, that she did not find any documentation concerning his 2006 removal, and that the last document in his OPF is the October 13, 2006 SF-50 indicating that he resigned for “personal reasons.” Id. at 128-29. The agency also submitted a sworn declaration from a Supervisory Security Specialist with ICE’s Office of Professional Responsibility who attested that his office did not contact any CBP employees regarding the information in the LOI and did not utilize an y information belonging to CBP regarding the appellant. Id. at 132-33. Rather, he explained, the information in the LOI came from “prior investigatory records belonging to ICE.” Id. at 133. The agency further argued that, even if CBP had provided the information to ICE about the appellant ’s 2006 removal , CBP had not breached the settlement agreement because the appellant executed a waiver when he certified his Electronic Questionnaire for Investigations Processing (e -QIP) on or about February 25, 2016, releasing CBP from its nondisclosure obligation . Id. at 6-7, 9, 34. In his reply, the appellant appeared to argue that the agency had not done enough to provide him a clean record and reiterated his contention that the allega tions in the LOI were false. C-2 CF, Tab 7 at 14 -18. ¶7 Without holding the appellant’s requested hearing, the administrative judge issued a second compliance initial decision finding that the appellant failed to prove that the agency provided information to ICE in violation of the sett lement agreement and that, even if it did provide such information, the appellant’s e -QIP waiver released the agency from its nondisclosure obligation. C -2 CF, Tab 8, Compliance Initial Decision ( C-2 CID) at 8. Therefore, she denied the appellant’s secon d petition for enforcement. C-2 CID at 9. ¶8 The appellant has filed a petition for review challenging the second compliance initial decision, and the agency has responded in opposition. Torres 6 v. Department of Homeland Security , MSPB Docket No. DA -0752 -07-0066 -C-2, Compliance Petition for Review (C -2 CPFR) File, Tabs 1, 3.4 ANALYSIS ¶9 The Board has the authority to enforce a settlement agreement that has been entered into the record in the same manner as any final Board decision or order. Vance v. Departme nt of the Interior , 114 M.S.P.R. 679 , ¶ 6 (2010). A settlement agreement is a contract, and the Board will therefore adjudicate a petition to enforce a settlement agreement in accordance with contract law. Id. (citing Greco v. Department of the Army , 852 F.2d 558 , 560 (Fed. Cir. 1988 )). The appellant, as the party alleging noncompliance, bears the burden of proving by preponderant evidence that the agency breached the settlement agreement.5 Haefele v. Department of the Air Force , 108 M.S.P.R. 630 , ¶ 7 (2008). In response to a petition for enforcement claiming breach of a settlement agreement, the agency should submit evidence of the measures it too k to comply, but this is a burden of production only; the overall burden of persuasion on the breach issue remains with the appellant. Turner v. Department of Homeland Security , 102 M.S.P.R. 330, ¶ 5 (2006). An administrative judge should hold an evidentiary hearing if there is a genuine issue of material fact concerning the agency’s breach of a settlement agreement. Id.; see 5 C.F.R. § 1201.183 (a)(3). 4 In addition to challenging the administrative judge’s finding that the appellant failed to prove breach of the settlement agreement, he argues on review that CBP violated 5 C.F.R. § 293. 103(b) by releasing false information about him to ICE, violated the Privacy Act by “enhanc[ing]” his personnel file, and provided additional false information to ICE unrelated to his 2006 removal. C -2 CPFR File, Tab 1 at 10 -11. These allegations, howeve r, are unrelated to the 2007 settlement agreement and thus are beyond the scope of this compliance proceeding. Therefore, we do not consider them further. 5 A preponderance of the evidence is the degree of relevant evidence that a reasonable person, consi dering 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 ¶10 In the second compliance initial decision, the administrative judge found that, although it was unclear where ICE obtained the information pertaining to the appellant’s 2006 removal, the sworn declarations submitted by CBP reflected that it did not provide the information and that th e appellant failed to rebut those declarations with any evidence to the contrary . C-2 CID at 7 -8. She noted that the declarations did not preclude the possibility that CBP failed to eliminate the information from records that were accessible by other components of the agency, including ICE, but that the settlement agreement did not require CBP to do so. C-2 CID at 8. She further fo und that, even if CBP did provide to ICE the information regarding the appellant’s 2006 removal and settlement, the appellant’s e -QIP waiver released CBP from its nondisclosure obligation. Id. ¶11 On review, the appellant reiterates his argument that CBP violated the settlement agreement by intentionally releasing false and derogatory information about him to ICE and argues that the administrative judge erred by failing to hold a hearing to determine whether the agency breac hed the settlement agreement. C-2 CPFR File, Tab 1 at 9 -11. He challenges the Supervisory Security Specialist’s sworn statement that the information about his 2006 removal came from ICE’s own records because he “has no record of ever working for ICE, prior to his current application.” Id. at 10. He also argues that ICE’s possession of incorrect information regarding his rescinded 2006 removal is prima facie evidence of breach. Id. For the reasons that follow, we find these arguments unpersuasive. ¶12 As noted above, the settlement agr eement resolving the appellant’s 2006 removal appeal provided that he would receive a “clean record, ” i.e., replacement of the SF -50 showing his removal with one showing that he resigned and expungement of all references to the removal in his OPF . Torres , 110 M.S.P.R. 482, ¶ 12; C-2 CF, Tab 5 at 26. This provision requires not only that CBP expunge removal -related documents from the appellant’s personnel file, but also that it act as if the appellant had a clean record in dealings and communications 8 with third parties. Torres , 110 M.S.P.R. 482, ¶ 12. Therefore, CBP is precluded under the terms of the contract from disclosing information related to the appellant’s removal. See id. As correctly noted by the administrative judge, however, the settlement agreeme nt does not require CBP to ensure that every system within the entire agency, including those within other components of the agency, such as ICE, are free from references to the appellant’s removal and the settlement thereof. C-2 CID at 8; C -2 CF, Tab 5 a t 26; see Shirley v. Department of the Interi or, 120 M.S.P.R. 195 , ¶¶ 21-23 (2013) (finding that the presence of documents referenci ng the appellant’s removal in a separate file in a separate office did not violate the clean record provision of the settlement agreement, which required the agency to “remove any and all documents related to Appellant’ s removal from Federal se rvice from t he Appellant’s OPF”). ¶13 In light of the foregoing, we find no merit to the appellant’s assertion that ICE’s mere possession of information about his 2006 removal establishes that CBP breached the settlement agreement . Absent any evidence to rebut the sworn declarations attesting that CBP complied with the settlement agreement ’s clean record provision and did not provide information to ICE about the appellant’s 2006 removal , we agree with the administrative judge’s determination that the appellant faile d to satisfy his burden of proving by preponderant evidence that a breach actually occurred. In addition, the appellant’s conclusory and vague allegations of breach fall well short o f establishing a genuine issue of fact as to warrant a hearing , and we fi nd that the administrative judge properly decided the matter without holding the appellant’s requested hearing . See Turner , 102 M.S.P.R. 330 , ¶ 5. ¶14 As noted above, the administrative judge also found that, even if the appellant established that CBP provided the information regarding his 2006 removal to ICE , his e -QIP waiver released CBP from its nondisclosure obligation . C-2 CID at 8. The appellant challenges this finding on review, arguing that he would not have signed the e-QIP waiver if he had known that the agency would 9 “enhance” his personnel file and fail to provide him a “clean paper” record pursuant to the settlement agreem ent. C -2 CPFR File, Tab 1 at 10-11. However, the appellant has not provided any evidence on which to disturb the administrative judge’s alternate finding that the appellant executed a valid and enforceable waiver releasing CBP from its nondisclosure obligation. C-2 CID at 8; see generally Lee v. U.S. Postal Service , 111 M.S.P.R. 551 , ¶¶ 9 -10 (2009) (finding that an appellant’s unilateral mistake as to the scope of a waiver of rights in a settlement agreement did not provide a basis for finding the waiver unenforceable), aff’d per curiam , 367 F. App’x 137 (Fed. Cir. 2010). ¶15 Accordingly, we affirm the denial of the appellant’s second compliance petition for review . NOTICE OF APPEAL RIGHTS6 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statut e, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the following summary of availab le appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may resu lt in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 6 Since the issuance of the initial dec ision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 10 about whether a particular forum is the appro priate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of App eals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition 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 11 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative 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/Co urt_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then 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 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 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.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 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 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 petitio ns for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.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	TORRES_SERGIO_I_DA_0752_07_0066_C_2_FINAL_ORDER_1913065.pdf	2022-04-04	null	DA-0752	NP
4,492	https://www.mspb.gov/decisions/nonprecedential/CHAMBERLIN_EDWIN_JAMES_DC_831M_16_0275_C_1_FINAL_ORDER_1913162.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD EDWIN JAMES CHAMBERL IN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency. DOCKET NUMBER DC-831M -16-0275 -C-1 DATE: April 4, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Edwin James Chamberlin , Swannanoa, North Carolina, pro se. Cynthia Reinhold , Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the August 3 , 2016 compliance initial decision in this appeal . Compliance File, Tab 5; Compliance Petition for R eview ( CPFR) File, Tab 1. However, after the agency filed a 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 response to the petition for review, the appellant filed a pleading indicating that the matter “has been resolv ed” and subsequently clarified that he wishes to withdraw the petition for review. CPFR File, Tabs 5 -6. The agency indicated that it has no objection to the withdraw al of the petition for review. CPFR File, Tab 6. ¶2 Finding that withdrawal is appropriate under these circumstances, we DISMISS the petition for review as withdrawn with prejudice to refiling.2 ¶3 The compliance initial decision of the administrative judge is final. This is the Board’s final decision in this matter. Title 5 of the Code of Federa l 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 r egarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within t he applicable time limit may result in the dismissal of your case by your chosen forum. 2 As noted in the September 21, 2016 letter acknowledging the appellant’s petition for review a nd the July 2, 2018 notice regarding the appellant’s request to withdraw the petition for review, the appellant’s petition appears to be untimely; however, given the Board’s disposition in this matter, it need not address the timeliness of the appellant’s petition for review. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for re view with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you 4 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative recei ves this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepa yment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Co urt_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S. C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: 5 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C . 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdi ction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circui t 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petiti oners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our we bsite at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorne y will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board	CHAMBERLIN_EDWIN_JAMES_DC_831M_16_0275_C_1_FINAL_ORDER_1913162.pdf	2022-04-04	null	DC-831M	NP
4,493	https://www.mspb.gov/decisions/nonprecedential/PETTUS_CARISSIMA_M_DC_0353_13_0409_B_1_FINAL_ORDER_1913265.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CARISSIMA M. PETTUS, Appellant, v. DEPARTMENT OF THE NA VY, Agency. DOCKET NUMBER S DC-0353 -13-0409 -B-1 DC-0752 -16-0763 -I-1 DATE: April 4, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Carissima M. Pet tus, Burlington, North Carolina, pro se. Sean McBride , Esquire, Norfolk, Virginia, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant petition s for review of the remand initial decision in Pettus v. Department of the Navy , MSPB Docket No. DC-0353 -13-0409 -B-1, granting her relief in her restoration appeal , and the initial decision in Pettus v. Department of the Navy , MSPB Docket No. DC -0752 -16-0763 -I-1, dismissing her alleged constructive suspension app eal. These two appeals concern the same absence; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative jud ges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 therefore, w e JOIN them under 5 C.F.R. § 1201.36 (b) because doing so will expedite processing without adversely affecting the interests of the parties . ¶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 res ulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under s ection 1201.115 for granting her petiti ons for review. Therefore, we DENY the petition s for review and AFFIRM the initial decision s, which are now the Board’s final decision s in these appeals . 5 C.F.R. § 1201.113 . BACKGR OUND ¶3 The appellant originally suffered an on -the-job injury on November 30, 2011. Pettus v. Department of the Navy , MSPB Docket No. DC -0353 -13-0409 - I‑1, Initial Appeal File (0409 IAF), Tab 16 at 12. The Office of Workers’ Compensation Programs (OWCP) accepted this injury as compensable. Id. On August 28, 2012, the appellant suffered a recurrence , which OWCP also deemed compensable . 0409 IAF , Tab 8 at 49-50, 79. On November 29, 2012, the appellant informed the agency that she had reached maximum medical improvement and requested restoration to a position within her medical restrictions. 0409 IAF, Tab 16 at 25. The agency denied her request. Id. at 19‑20. However, in doing so, it admittedly did not conduct an agency -wide 3 search for work. Pettus v. Department of the Navy , MSPB Docke t No. DC -0353 - 13-0409 -B-1, Remand File ( 0409 RF), Tab 24 at 20 -23, Tab 31 at 6. ¶4 The appellant filed a restoration appea l, after which t he agency offered , and she accepted, a position on December 24, 2013. 0409 IAF, Tab 1, Tab 19 at 3 ; 0409 R F, Tab 31 at 6. The appellant’s restoration appeal . ¶5 After an administrative judge dismissed the appellant’s restoration appeal for la ck of jurisdiction, t he Board remanded for a jurisdictional hearing because the record reflected that the appellant had nonfrivolously alleged facts that , if proven, would establish that she was a physically disqualified individual and that the agency had violated the restoration rights to which she was entitled under 5 C.F.R. § 353.301 (c). Pettus v. Department of the Navy , MSPB Docket No. DC-0353 -13-0409 -I-2, Remand Order (Nov. 5, 2015) . The administrative judge issued an order in which she set forth the pertinent jurisdictional elements for the appellant’s restoration and discrimination claims, granted the agency’s request for a 30-day continuance, and set forth discovery deadlines . 0409 RF , Tab s 9, 13, 16. ¶6 The administrative judge granted the agency’s subsequent motion to compel discovery and ultimately struck the appellant’s disability discrimination claim as a sanction for her failure to comply with an order to respond to the agen cy’s discovery requests . 0409 RF , Tabs 17 -20. ¶7 The administrative judge determined that the agency’ s failure to perform the required agency -wide search was an arbitrary and capricious denial of the appellant’s restoration request , and, in light of that r uling, the appellant withdrew her earlier request for a hearing on her restoration claim. 0409 RF , Tab 9, Tab 31 at 6‑7. The administrative judge therefore issued a remand initial decision in which she found that the agency had failed to properly restore the appellant for the period beginning with her first request for restoration on November 29, 2012 , and ending with her acceptance of the agency’s offer of a GS -05 Security 4 Assistant position on December 23, 2013. 0409 RF , Tab 32, Remand Initial Decision (0409 RID). The appellant’s constructive suspension appeal . ¶8 The appellant first asserted a constructive suspension claim in her remanded restoration appeal . 0409 RF , Tab 30 at 4. The administra tive judge determined that, under the circumstances , she s hould adjudicate only the restoration appeal that the Board had remanded to the regional office , observing that the appellant could file a new constructive suspension appeal. Id. at 4-5. The appellant did so , contending that the agency constructively suspended her when it placed her in an enforced leave status for more than 14 days . Pettus v. Department of the Navy , MSPB Docket No. DC-0752 -16-0763 -I-1, Initial Appeal File ( 0763 IAF), Tabs 1, 8. ¶9 The administrative judge dismissed the appeal because she found that the appellant’s rights and remedies regarding the time that she alleged that the agency constructively suspended her were subsumed in her restoration appeal. 0763 IAF , Tab 9, Initial Decision ( 0763 ID). ¶10 The appellant filed separate petitions for review in each appeal. Pettus v. Department of the Navy , MSPB Docket No. DC -0353 -13-0409 -B-1, Remand Petition for Review ( RPFR ) File, Tab 1; Pettus v. Department of the Navy , MSPB Docket No. DC-0752 -16-0763 -I-1, Petition for Review (PFR) File, Tab 1. For the following reasons, we deny the appellant’s petitions for review and affirm the remand initial decision finding that the agency denied her restoration and the initial decision dismissing her constructive suspension appeal . DISCUSSION OF ARGUME NTS ON REVIEW We accept the appellant’s petition for review in her re storation appeal as timely filed under the circumstances . ¶11 The appellant electronically filed her petition for review in her restoration appeal 4 minutes and 49 seconds late. RPFR File, Tab 1. The Clerk of the Board 5 notified the appellant that her petition was untimely . RPFR, Tab 2. The appellant filed a motion to accept the filing as timely or to waive or set aside the time limit, attributing her lateness to personal circumstances and te chnical difficulties. RPFR File, Tab 3; 5 C.F.R. § 1201.114 (g). The agency responded in opposition to the appellant’s motion and to her petition for review. RPFR, Tab 4. The appella nt’s former representative also filed a motion to intervene to protect the favorable remand initial decision and his opportunity to be awarded attorney fees. RPFR, Tab 5. The agency responded in opposition to the motion to intervene and the appellant’s f ormer representative responded to the agency’s opposition.2 RPFR, Tabs 6 -7. ¶12 In light of the appellant’s pro se status, the minimal delay involved, and the lack of any prejudice to the agency, we exercise our discretion to accept the appellant’s petition for review. See Moorman v. Department of the Army , 68 M.S.P.R. 60 , 62-63 (1995) (finding that , to determine whether an appella nt has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and his showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected his ability to comply with the time limits or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition) , aff’d , 79 F.3d 1167 (Fed. Cir. 1996) (Table) . Importantly , the fact that the appellant’s petition was less than 5 minutes late indicates that she was most likely diligently trying to timely file at the time of the deadline . See, e.g., Rousselle v. Department of the Army , 69 M.S.P.R. 531 , 535 -36 (1996) ( finding that an appellant acted with due diligence by depositing his petition for review with proper postage in a Kinko’s mail box ). 2 We deny the motion to intervene. Issues regarding attorney fees are premature, as the remand initial decision is not yet final. See generally 5 C.F.R. § 1201.203 (explaining how to seek attorney fees incurred in connection with a Board appeal ). 6 The administrative judge correctly found that the agency failed to restore the appellant and ordered back pay but not placement in a position . ¶13 The administrative judge found that the appellant was physically disqualified from her former position and the agency faile d in its obligation to restore her from November 29, 2012 , to December 23, 2013. 0409 RID at 7. The parties do not challenge this finding on review. An employee who is physically disqualified from her former position as the result of a compensable injury has an agency‑wide right to restoration to an equivalent position or the “nearest approximation thereof” within the first year of her injury. 5 C.F.R. § 353.301 (c). Under the applicable regulation, the appellant only need s to prove that the agency failed to restore her, or improperly restored her, following a leave of absence .3 5 C.F.R. § 353.304 (a). ¶14 The appellant argues on review that the administrative judge should have ordered the agency to place her in a Program Support Assistant position that she requested on November 29, 2012 . RPFR File, Tab 1 at 5. We disagree. Under the circumstances here, t he administrative judge correctly ordered the agency to pay the appellant back pay from November 29, 2012 , to December 23, 2013 . 0409 RID at 7; Pettus v. Department of the Navy , MSPB Docket No. DC -0353 - 13-0409 -I-2, Tab 12 at 46‑47, 112, 114. The record reflects that , after the age ncy restored the appellant to a Security Assistant position on December 23, 2013 , it removed her for misconduct unrelated to the matters on appeal and she did not appeal that removal. 0409 RID at 3 n.2. The Board has held that an employee who was absent from work because the agency removed her for cause, rather than for reasons substantially related to her compensable injury, is not entitled to restoration . Manning v. U.S. Postal Service , 118 M.S.P.R. 313, ¶ 8 (2012) . Thus, 3 To the extent that the administrative judge found that the appellant had to prove that the agency’s den ying resto ration was arbitrary and capricious, we modify that finding. 0409 RID at 5 -6. The arbitrary and capricious burden does not apply to employees seeking restoration within 1 year after compensation begins . See 5 C.F.R. § 353.304 (setting forth an appellant’s burden of proof based on the degree of her recovery) . 7 even if the appellant could somehow establish that the agency should have place d her in the Program Support Assistant position, she would not be entitled to that remedy . ¶15 Regarding the striking of her disability discrimination claim, the appellant contends on review that the administrative judge failed to give her 10 days to respond to the agency’s motion for sanctions and this prejudiced her ability to oppose the motion. RPFR, Tab 1 at 10. However, the record does not reflect that the appellant lodged any objection to the administrative judge’s ruling below. See Brown v. U.S. Postal Service , 64 M.S.P.R. 425 , 429 (1994) ( finding that the appellant ’s failure to preserve an objection on the record to the administrative judge ’s ruling on a motion to compel precluded him from objecting to that ruling on review) . The record reflects that the appellant not only failed to respond to the agency’s discovery request , but that she also failed to respond to the agency ’s motion to compel discovery and the administrative judge’s order s to file h er discovery responses. 0409 RF , Tabs 16-20; Smets v. Department of the Navy , 117 M.S.P.R. 164, ¶ 13 (2011) (finding that an admin istrative judge is not required to provide the appellant with an opportunity to oppose sanctions for failure to comply with an order that warned of the possibility of sanctions) , aff’d per curiam , 498 F. App’x 1 (Fed. Cir. 2012) . In granting the agency’s motion to compel, the administrative judge warned the appellant that failure to comply could result in sanctions. 0409 RF, Tab 18. It is well settled that administrative judges have broad discretion to regulate the proceedings before them, including the authority to rule on discovery motions and to impose sanctions as necessary to serve the ends of justice . Defense Intelligence Agency v. Department of Defense , 122 M.S.P.R. 444, ¶ 16 (2015); see 5 C.F.R. § 1201.43 (discussing the circumstances under which an administrative judge may impose sanctions, including failure to comply with an order or prosecute an appeal ). We discern no basis for finding that the administrative judge abused h er discretion in imposing the sanction after the appellant ’s repeated failures to comply with the Board’s 8 discovery ru les and with the administrative judge’s orders regarding discovery. See Heckman v. Department of the Interior , 106 M.S.P.R. 210 , ¶¶ 14-16 (2007) (finding that an administrative judge did not abuse her discretion in dismissing two of the appellant’s claims after he failed to comply with multiple orders for 2 1/2 months) . ¶16 The appellant also argues that the administrative judge gra nted the agency a continuance without good cause while holding her to strict deadlines , contending that, as a result , the administrative judge took too long to adjudicate the appea l. RPFR File, Tab 1 at 10. T he appellant implies that this demonstrates th at the administrative judge was biased against her. Id. The record reflects that the administrative judge granted the agency a 30 -day suspension based on its scheduling conflict. 0409 RF, Tab 14 , Tab 16 at 7‑8. Although the request was made by the agen cy, the administrative judge extended deadlines for both parties, and expressed her intention that they use this time to conduct discovery . 0409 RF, Tab 16 at 7 ‑8. There is a presumption of honesty and integrity on the part of adm inistrative judges that can be overcome only by a substantial showing of personal bias, and the Board will not infer bias b ased on an administrative judge’ s case -related rulings . Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013). A n administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if her comments or actions evidence “a deep -seated f avoritism or antagonism that would make fair judgment impossible. ” Bieber v. Department of the Army , 287 F.3d 1358 , 1362‑63 (Fed. Cir. 2002) (qu oting Liteky v. United States , 510 U.S. 540 , 555 (1994)). The appellant fails to make such a showing. The administrative judge correctly found that the appellant ’s constructive suspension claim was subsumed in her restoration appeal . ¶17 A constructive suspension claim generally is subsumed in a restoration claim when both claims are based on the same absence. Kinglee v. U.S. Postal 9 Service , 114 M.S.P.R. 473 , ¶¶ 19-22 (2010) . If, as here, the Board has determined on the merits that the agency violated an appellant ’s restoratio n rights and has ordered the relief to which the employee is entitled , it would be illogical to also find that the agency constructively suspended the appellant for the same time period. See id. , ¶ 21. Moreover, viewing the appellant ’s constructive suspension claim as subsumed by her restoration claim is consistent with the principle of excluding other avenues of relief where by a comprehensive scheme exists regarding the rights and remedies at issue . Id., ¶ 22. The comprehensive scheme promulgated by th e Office of Personnel Management identifies the rights and remedies for physically disqualified individuals like the appellant , and we find that those procedures are sufficient to address her claims herein. See i d. ¶18 The appell ant asserts on review that t he B oard’s holding in Kinglee is restricted to circumstances involving the National Reassessment Process of the U.S. Postal Service . PFR File, Tab 1 at 7. We find no reason to distinguish the holding in Kinglee on that basis. See Dean v. U.S. Postal Ser vice, 115 M.S.P.R. 56, ¶ 21 n.8 (2010) (finding that a constructive suspension claim was sub sumed in an employee’s restoration claim because a comprehensive scheme regarding the rights and remedies for those who partially or fully recover from compensable injuries provided sufficient redress for both claims ). ORDER ¶19 We ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other be nefits under the Back Pay Act, as appropriate, no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we 10 ORDER the agency to pay the appel lant 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 has fully carried out the Board’s Order and of the actions it has taken t o 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 appellant believes that the agency did not fully carry out the Board’s Orde r. 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). ¶22 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the informat ion and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 ‑day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR RIGHT TO REQUES T ATTORNEY FEES AND CO STS IN MSPB DOCKET NO. DC-0353 -13-0409 -B-1 You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you m ust 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 , 1201.2 02, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees 11 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 i nitial decision on your 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 summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this fi nal decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that fo rum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by th e court 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 f inal decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 12 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal 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 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 13 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites , which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Com mission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be 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 14 other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial pet ition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this deci sion. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of 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 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent j urisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 15 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board ¶23 DEFENS E 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 f ollowing checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETT LEMENT 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 notif ied 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 ear nings 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 o f 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 la ter reversed , there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt fr om the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY C ASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decision. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63) e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected. (if applicable) Attachments to AD -343 1. Provide pay entitlement to include Overtime, N ight Differential, Shift Premium, Sunday Premium, etc. with number of hours and dates for each entitlement. (if applicable) 2. Copies of SF -50's (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation st atement 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 Computati on 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.	PETTUS_CARISSIMA_M_DC_0353_13_0409_B_1_FINAL_ORDER_1913265.pdf	2022-04-04	null	S	NP
4,494	https://www.mspb.gov/decisions/nonprecedential/KELLEY_SUZANNE_PH_0432_17_0030_I_1_FINAL_ORDER_1912602.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SUZANNE KELLEY, Appellant, v. DEPARTMENT OF THE IN TERIOR, Agency. DOCKET NUMBER PH-0432 -17-0030 -I-1 DATE: April 1, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Doris J. Dabrowski , Esquire, Philadelphia, Pennsylvania, for the appellant. Wayne A. Babcock , Esquire, Pittsburgh, Pennsylvania, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The agency has petitioned for review of the May 8, 2017 initial decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal File, Tab 22, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case 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 Initial Decision . For t he reasons set forth below, we DISMISS the appeal as settled.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 May 11, 2018. PFR File, Tab 8 at 8. The settlement agreement provides, among other things, that the appella nt agreed to the dismissal of 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 u nderstand 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 in to 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 ha ve 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 8 . In addition, we find that the agreement is lawful on its face and that the parties freely entered into it. Id. Accordingly, we find that dismissing the appeal “with prejudice to refiling” (i.e., the parties normally may not refile this appeal) is appropriate under these 2 The same settlement agreement also covers the appellant’s second appeal, MSPB Docket No. PH -0752 -18-0098 -I-1. The administrative judge , in an initial decision dated May 21, 2018, dismissed that case pursuant to the settlement agreement. 3 circumstances, and we accept the settlement agreement into the record for enforcement purposes. ¶5 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 ). 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 pe tition 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 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 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 forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 2043 9 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for informati on regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 5 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for re view to the EEOC by regular U.S. mail, the address of the EEOC is: 6 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enha ncement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of compete nt jurisdiction.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 judi cial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional informatio n about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Prac tice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.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	KELLEY_SUZANNE_PH_0432_17_0030_I_1_FINAL_ORDER_1912602.pdf	2022-04-01	null	PH-0432	NP
4,495	https://www.mspb.gov/decisions/nonprecedential/AUDI_RAMI_S_PH_0752_20_0350_I_1_FINAL_ORDER_1912795.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD RAMI S. AUDI, Appellant, v. DEPARTMENT OF DEFENS E, Agency. DOCKET NUMBER PH-0752 -20-0350 -I-1 DATE: April 1, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rami S. Audi , Paramus, New Jersey, pro se. Clifford J. Allen , Garden City, New York, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which affirmed the appellant’s indefinite suspension based on the suspension of his access to classified information . On petition for review the appellant argues , among other things, that his indefinite suspension was improper because he should have been allowed to continue to work or kept on administrative leave, the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 agency committed harmful error by violating its procedures , the administrative judge was biased against him, and the testimony of agency witnesses was inaccurate . General ly, 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 applicat ion of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). DISCUSSION OF ARGUME NTS ON REVIEW ¶2 The appellant mak es several arguments on review for the first time which he could have made on appeal. Because he fails to show that these arguments are based on new and material ev idence not previou sly available despite his due diligence , we need not consider them . Clay v. Department of the Army , 123 M.S.P.R. 245 , ¶ 6 (2016). However, even if we were to consider them, they would fail to show error by the administrative judge . To the extent the appellant contests the agency’s decision to suspend his access to classified information, Petition for Review (PFR) File, Tab 4 at 10, the Board lacks authority to review the merits of such a decision . Palaf ox v. Department of the Navy , 124 M.S.P.R. 54, ¶ 8 (2016). To the extent the appellant argues that he should have been kept at work or on administrativ e leave, PFR File, Tab 4 at 11 -12, we have previously 3 held that ordering an employee’s restoration to duty or to paid administrative leave before an agency reinstates his access to classified information intrude s upon an agency’s au thority t o regulate and manage employees’ access to classified information . Ryan v. Department of Homeland Security , 121 M.S.P.R. 460, ¶ 15 (2014), overruled on other grounds by Freeze v. Department of the Navy , 122 M.S.P.R. 179 (2015). Further, the U.S. Court of Appeals for the Federal Circuit has held that the Board lacks authority to inquire into the feasibility of transferring an employee whose security clearance had been denied to an alternative position absent a policy requiring such transfers . Griffin v. Defense Mapping Agency , 864 F.2d 1579 , 1580 -81 (Fed. Cir. 1989) . Because no policy required the appellant’s reassignment , see Initial Appeal File ( IAF), Tab 32 at 5, we may not review whether the appellant should have been reassigned instead of subjected to an adverse action. ¶3 The appellant makes new harmful error arguments , PFR File, Tab 4 at 12, 18-19, but these fail to identify any violatio n of agency procedures and therefore lack merit. See Hylick v. Department of the Air Force , 85 M.S.P.R. 145 , ¶ 13 (2000) (reversi ng an administrative judge’s finding of harmful error when the employee did not prove that the agency violated a law, rule, or regulation). The appellant notes his inability to obtain documents referenced in the Statement of Reasons (SOR) for the prelimin ary revocation of his eligibility for access to classified information, PFR File, Tab 4 at 15, but he had no due process rights with respect to the procedures used to preliminarily revoke his access eligibility, and therefore had no right to receive the evidence underlying the SOR prior to his indefinite suspension. Gargiulo v. Department of Homeland Secu rity, 727 F.3d 1181 , 1185 (Fed. Cir. 2013). Finally, to the extent the appellant suggests his indefinite suspension constituted age discriminat ion, PFR File, Tab 4 at 11, the Board may not adjudicate whether an agency’s adverse action premised on the suspension or revocation of a security clearance constitutes impermissible 4 discrimination. Putnam v. Department of Homeland Security , 121 M.S.P.R. 532 , ¶ 18 (2014) . ¶4 The appellant’s arguments on review which he did not have the opportunity to assert previously also do not warra nt disturbing the initial decision. First, the appellant claims that the administrative judge was biased against him due to improper consideration of information about his “demeanor.” PFR File, Tab 4 at 12-13, 19 -20. This argument fails because not only is his allegation unsupported by any evidence, but an administrative judge’s bias must be demonstrated by extrajudicial conduct, rather than conduct arising in the administrative proceedings as alleged by the appellant. Gensburg v. Department of Veterans Affairs , 85 M.S.P.R. 198 , ¶¶ 6, 8 (2000). Second, contrary to the appellant’s argument, we find no inconsistency between the ag ency’s maximization of telework during the COVID -19 pandemic and the deciding official’s testimony that employees performed classified work during the pandemic. PFR File, Tab 4 at 17. Lastly, the appellant raises an inconsistency between a security speci alist’s hearing testimony and her affidavit. Id. The inconsistency was minor and immaterial to the ultimate issues in the case, providing no grounds to disturb the initial decision. See Lucas v. Department of the Army , 11 M.S.P.R. 334 , 337 (1982). Further, to the extent the appellant raised this inconsistency in order to support a harmful error claim, his claim fails because he did not show that the agency violated its procedures .2 Hylick , 85 M.S.P.R. 145 , ¶ 13. 2 The appellant argued below and on review that, while he was on administrative leave prior to his indefinite suspension, he did not receive emails sent to all agency employees regarding voluntary ea rly retirement. IAF, Tab 1 at 5, Tab 27 at 57 -60, 91; PFR File, Tab 4 at 11. The Board has jurisdiction to hear an appeal of an employing agency’s “administrative action or order” affecting an individual’s rights or interests under the retirement statute s. Adams v. Department of Defense , 688 F.3d 1330 , 1335 (Fed. Cir. 2012). Other than his nonreceipt of emails while he was on administrative leave, the appellant has not pointed to any agency action denying his application for early retirement or otherwise finding him ineligible for such a benefit. Because there was no “administrative action or order” affecting the appellant’s rights or interest s 5 NOTICE OF APPEAL RIG HTS3 You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which t o file. 5 U.S.C. § 7703 (b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriat e for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applica ble to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions under a retirement statute, the Board lacks jurisdiction over the claim. Eller v. Office of Personnel Management , 121 M.S.P.R. 5 51, ¶ 8 (2014) (stating that the Board has jurisdiction over an “administrative action or order” affecting an individual’s rights or interests under the retirement statutes); see Edwards v. Office of Personnel Management , 11 M.S.P.R. 562 , 565 n.1 (1982) (finding the Board lacked jurisdiction over a claim by an appellant covered under the Civil Service Retirement System (CSRS) that he was entitled t o a refund of retirement deductions when he did not apply for a refund and there was no decision on the matter); Pair v. Government of the District of Columbia , 7 M.S.P.R. 175 , 176 (1981) (finding there was no administrative action or order appealable to the Board when the appellant, covered under CSRS, proffered no evidence that she submitted a retirement application or that her claim for an annuity was adjudicated); 5 C.F.R. § 1201.3 (a)(2). If the appellant wishes to pursue a claim of his entitlement to early retirement, he must first obtain a decision regarding his entitlement from the agency. The appellant also asserted in his initial appeal that he was excluded from offers of early retirement as possible whistleblower retaliation. IAF, Tab 1 at 5. If the appellant wishes to pursue a whistleblower reprisal claim, he may seek cor rective action from the Office of Special Counsel. See 5 U.S.C. § 1214 (a)(3). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 6 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by a n action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain 7 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, 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 res pective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employ ment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operatio ns within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then yo u must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment O pportunity Commission P.O. Box 77960 Washington, D.C. 20013 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 Opportuni ty Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclo sures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then y ou may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial 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 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 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.go v. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	AUDI_RAMI_S_PH_0752_20_0350_I_1_FINAL_ORDER_1912795.pdf	2022-04-01	null	PH-0752	NP
4,496	https://www.mspb.gov/decisions/nonprecedential/GREEN_CARIE_DC_3443_21_0542_I_1_FINAL_ORDER_1912810.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD CARIE GREEN, Appellant, v. DEPARTMENT OF JUSTIC E, Agency. DOCKET NUMBER DC-3443 -21-0542 -I-1 DATE: April 1, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Carie Green , Glen Burnie, Maryland, pro se. Melanie F. Jones , Esquire, Washington , D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which dismissed her ap peal for lack of jurisdiction. On petition for review, the appellant avers that the administrative judge “inaccurately stated” her arguments ; however, she does not identify the purported inaccuracies or otherwise provide any discernable argument regarding the Board’s jurisdiction over her appeal . 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any 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 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 Reg ulations, 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 1201.11 5 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). NOTICE OF APPEAL RIG HTS2 You may obtain review of this final 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 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 des cribed below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediate ly review the law applicable to your claims and carefully follow all 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 3 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the thr ee main possible 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) Judi cial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the cou rt at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 4 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful 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 i n this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 5 If you submit a request for review to the EEOC by regular U.S. m ail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 practi ces described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of ap peals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act , signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit co urt of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 6 If you submit a petition for judicial review to the U.S. Court of Ap peals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal 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. 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	GREEN_CARIE_DC_3443_21_0542_I_1_FINAL_ORDER_1912810.pdf	2022-04-01	null	DC-3443	NP
4,497	https://www.mspb.gov/decisions/nonprecedential/SOOTER_JUNE_T_CH_1221_12_0588_B_1_FINAL_ORDER_1912815.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD JUNE T. SOOTER, Appellant, v. DEPARTMENT OF COMMER CE, Agency. DOCKET NUMBER CH-1221 -12-0588 -B-1 DATE: April 1, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 June T. Sooter , Lebanon, Kentucky, pro se. Frances C. Silva , Esquire, Washington, D.C., for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The appellant has filed a petition for revie w of the remand initial decision in this individual right of action (IRA) appeal , granting in part her motion for consequential damages and attorney fees. Generally, we grant petitions such as this one only in the following circumstances: the initial dec ision contains erroneous findings of material fact; the initial decision is based on an erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the 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, despi te 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 remand initial dec ision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). BACKGROUND ¶2 In an initial decision in the underlying appeal, t he administrative judge granted corrective action and denied interim relief . MSPB Docket No. CH -1221 - 12-0588 -W-1, Initial Appeal File, Tab 59, Initial Decision at 10 -11. The administrative judge found that , even if the agency had not terminated the appellant, her temporary appointment would have since expired . Id. On review, the Board found no basis upon which to disturb the se findings. Nevertheless, the Board remanded the appeal for further development regarding the proper corrective action for a temporary employee. Sooter v. Department of Commerce , MSPB Docket No. CH -1221 -12-0588 -W-1, Remand Order (April 2, 2015). ¶3 On remand, the administrative judge notified the parties that the matter before her was an addendum proceeding to address corrective action, damages, and attorneys’ fees. Remand Appeal File (RAF), Tab 5. Thus, she ordered the parties to submit a request for any corrective action, damages (including back wages), and attorneys’ fees in the form of an affidavit. Id. In addition, the appellant was ordere d to state the reasons why she wa s entitled to recover the amount sought, and to provide any supporting documentation. Id. 3 ¶4 In accordance with the Board’s remand order, the administrative judge developed the record regarding the proper corrective action. The administrative judge, moreov er, adjudicated the claims of c osts and attorneys’ fees at the same time , rather than addressing them in a separate addendum proceeding. Specifically, the administrative judge held a status conference on November 3, 2015, to address any outstanding issues , and she identified those damages on which the parties agreed .2 RAF, Tab 16. The appellant submitted an affidavit claiming a total of $5,351.91 in damages, whereas the age ncy claimed that the appellant wa s owed $1,712.61, minus appropriate deductions. RAF, Tabs 6, 14. ¶5 Based on the evidence submitted by the parties, the administrative judge found that the appellant’s claim that she would have rema ined employed beyond her not -to-exceed (NTE) date of August 24, 2010, was purely speculative and unsupported by the evidence. RAF, Tab 20, Remand Initial Decision (RID) at 4. The administrative judge observed that the agency submitted credible and unrebutted evidence showing that on October 22, 2010, it permanently closed the office in which the appellant previ ously worked and then closed another office in the same state on November 5, 2010, leaving only a “skeleton staff.” The administrative judge also found that both the number of crew leader s, like the appellant, and their assigned work hours , diminished s ubstantially from July 24 through August 28, 2010, at both locations. RID at 4. Thus, the administrative judge found that, although the appellant contended that she would have been one of the crew leaders selected to remain past the final week, there was n o evidence to support her claim that she would have continued employmen t beyond her NTE date. Id. ¶6 Regarding the appellant’s claim for damages, the administrative judge found that the appellant wa s entitled to consequential dama ges, which we re limited to reimbursement for her specific losses and expenses resulting from the 2 While the administrative judge indicates that she held “multi ple” status conferences, she only has provided a summary for the November 3, 2015 conference. RAF, Tab 16. 4 agency’s unjustified retaliatory conduct. RID at 4; see 5 U.S.C. § 1221 (g)(1)(A) . The administrative judge revi ewed th e evidence concerning back pay and the status of the two closed offices, as well as the number of crew leaders receiving pay during the relevant period of time , and concluded that the agency owed the appellant $888.83, plus the appropriate interest as set by the Office of Personnel Management. RID at 5 -7, 11. Additionally, the administrative judge found that the appellant wa s entitled to reimbursement of $342.87 for mileage , and $99.60 in faxing and copying fees, for a total of $442.47. RID at 8-9, 11. Regarding attorney fees, the administrative judge granted the $775.81 fees requested by the appellant. RID at 11 -12. ¶7 The appellant has filed a petition for review. Remand Petition for Review (RPFR) File, Tab 1. The agency has filed a response. RPFR File, Tab 3. DISCUSSION OF ARGUME NTS ON REVIEW ¶8 On review, the appellant has requested “a complete review of this case,” and challenges the proceedings related to the processing of the underlying appeal. For instance, she asserts that the administrativ e judge who handled her appeal after initial settlement efforts were unsuccessful was biased, as shown by the way the administrative judge “cut [her] off,” did not allow her to ask questions of agency witnesses during the hearing, told her she was not enti tled to attorney fees, and allowed the agency to change its defense as to the charged misconduct. RPFR 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 previou sly available despite the party’ s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). ¶9 The appellant should have raised these arguments during the pro cessing of the initial appeal . Because the appellant is raising these arguments for the first time on review of the remand initial decision, without a showing that her 5 arguments are ba sed on new and material evidence not previously available despite her due diligence, we need not address them. Id. ¶10 To the extent her arguments can be interpreted as alleging bias by the administrative judge during the remand proceedings, the Board has lon g held that, in making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). An allegation of bias by an administrative judge must be raised as soon as practicable after a party has reasonable cause to believe that gro unds for disqualification exist, and must be supported by an affidavit . Lee v. U.S. Postal Service , 48 M.S.P.R. 274 , 280 -82 (1991). An admi nistrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if her comments or actions evidence “a deep -seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358 , 1362 -63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540 , 555 (1994)). ¶11 Here, t he appellant’s allegations regarding the conduct of the administrative judge do not evidence antagonism or favoritism. First , she has not supported her claims of bias with an affidavit. Second , her dissatisfaction with the administrative judge’s adjudicatory rulings does not establish bias. See Coufal v. Department of Justice , 98 M.S.P.R. 31 , ¶¶ 10-11 (2004) (finding that an administrative judge’s rulings alone are insufficient to establish bias) ; RPFR File, Tab 1 at 6 . Third, w e have reviewed the record and find no evidence to support her bias allegations. Therefore, we find that the appellant’s claims of bias fail to provide a basis to disturb the remand initial decision. ¶12 The appellant also challenges the administrative judge’s findings concerning her back pay and her reliance upon pay documents submitted by the agency regarding the amount of pay she would have likely received during the relevant period. The appellant appears to argue that these documents should have 6 been excluded because they were produc ed for a first time on remand, long after her 2010 termination. PFR File, Tab 1 at 6. ¶13 However, as stated above, because the appellant’s position was a temporary NTE appointment and there was a question as to whether she would have remained employed until the end of her NTE period, we remanded this appeal for further development of the record. Thus, any documents provided by the agency concerning the relevant pay periods and the closing dates of the agency’s offices in the appellant’s state of employment were relevant to the question of whether she would have remained employed through the end of her NTE appointment . Therefore , the administrative judge properly admitted the agency’s documents into the record . Moreover, while the appellant challenges the reliance upon t he agency’s evidence regarding back pay and asserts that she should have received $3,262.63 in lost wages , plus appropriate interest, she has provided no evidence, either below or on review, in support of this claim. Accordingly, we find no reason to dist urb the administrative judge’s determination that the appellant is owed $888.83, plus interest at the appropriate rate, in back pay . ¶14 Finally, the appellant contends that she is entitled to an additional $3,250.80 “as payment for the wrongful termination an d the ensuing mental, physical, and emotional anguish.” RPFR File, Tab 1 at 6. However, as was set forth in the Board’s remand order, an appellant who prevails in an IRA appeal is entitled to status quo ante relief that includes the following: cancellin g the retaliatory personnel action; reinstatement to her former position or to another substantially equivalent position, as appropriate; back pay; interest on back pay; and other employment benefits that she would have received had the action not occurred . Schnell v. Department of the Army , 114 M.S.P.R. 83 , ¶ 18 (2010); Sooter , MSPB Docket No. CH -1221 -12-0588 -W-1, Remand Order (April 2, 2015). An appellant who prevails also is eligible for relief that exceeds the status quo ante, including medical costs incurred, travel expenses, other reasonably foreseeable consequential damages, and may request that disciplinary action be 7 imposed a gainst agency officials who engaged in retaliatory conduct. Samble v. Department of Defense , 98 M.S.P.R. 502 , ¶ 15 (2005) ; Newcastle v. Department of the Treasury , 94 M.S.P.R. 242 , ¶ 8 (2003); 5 C.F.R. § 1201.202 (b). ¶15 Our reviewing court , the U.S. Court of Appeals for the Federal Circuit, has determined that the term “consequential damages” in 5 U.S.C. § 1221 (g) is limited t o reimbursement of out -of-pocket costs to make an individual whole for an improper personnel action but does not include nonpecuniary damages. Bohac v. Department of Agriculture , 239 F.3d 1334 , 1343 (Fed. Cir. 2001). Applying Bohac , the Board has explained that, to receive a consequential damages award, an appellant must prove that she incurred consequential damages and that her claimed damages were reasonable, foreseeable, and causally related to the agency’s prohibited personnel practice. King v. Department of the Air Force , 122 M.S.P.R. 531 , ¶ 7 (2015); Johnston v. Department of the Treasury , 100 M.S.P.R. 78 , ¶ 13 (2005). The appellant did not r equest medical expenses or provide medical documentation below, and therefore we decline to award such expenses on review.3 ¶16 Here, the administrative judge properly allowed the parties to further develop the record, as instructed, before determining appropriate corrective action and damages. RAF, Tabs 5 -6, 8 -15, 17 -19. The administrative judge then thoroughly reviewed the evidence and made reasoned findings based on the record. See RID. Accordingly , we find no basis upon which to disturb the damag es awarded in the remand initial decision. 3 To the extent that the appellant is seeking compensatory damages, her claim predates the enactment of the Whistleblower Protection Enhancement Act, which allows for such dama ges. King v. Department of the Air Force , 119 M.S.P.R. 663 , ¶¶ 1, 15 (2013). As such, the Board is without authority to award the appellant compensatory damages. Id., ¶¶ 20-21. 8 ORDER ¶17 We ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, consequential damages, and attorneys’ fees4 no later than 60 calendar days after the date of this decision. We ORDER the appellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date o f this decision. ¶18 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶19 No later than 30 days after the agency tells the appellant that it has fully carried out the Board’s Order, the appellant m ay 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). ¶20 For agencies whose payroll is administered by either the National Finance Center of the Department of Agriculture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation 4 The agency shall pay the ordered amount of attorneys’ fees directly to the appellant, not to the attorneys as set forth in the remand initial d ecision. RID at 11 -12; see Rumsey v. Department of Justice , 866 F.3d 1375 , 1382 (Fed. Cir. 2017) (finding that , under 5 U.S.C. §§ 1221 (g)(1)(B) -(g)(2), an award of fees is property of the appellant , not the attorney). 9 necessary to process payments and adjustments resultin g from a Board decision are attached. The agency is ORDERED to timely provide DFAS or NFC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 -day period set forth above. NOTICE TO THE PARTIE S A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214 (f). NOTICE OF APPEAL 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 th eir jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 10 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropr iate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 11 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful 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 r eview by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s O ffice of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case, and your representative receives this decision before you do, then 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: 12 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection 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.6 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circ uit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any ot her circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 13 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 DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missing documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentat ion. Include record of all amounts earned by the employee in a job undertaken during the back pay period to replace federal employment. Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also, include record of any unemployment earning statements, workers’ compensation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leave ceiling will be restored to a separate leave account pursuant to 5 CFR 550.805(g). NATIONAL FINANCE CEN TER 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 (Pay roll/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 expl anation 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 hour s and dates for each entitlement. (if applicable) 2. Copies of SF -50's (Personnel Actions) or list of salary adjustments/changes and amounts. 3. Outside earnings documentation statement from agency. 4. If employee received retirement annuity or unemployment, provide amount and address to return monies. 5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable) 6. If employee was unable to work during any or part of the period involved, certification of the type of leave to be charged and number of hours. 7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave to be paid. NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and required data in 1 -7 above. The following information must be included on AD -343 for Settlement Cases: (Lump Sum Payment, Correction to 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.	SOOTER_JUNE_T_CH_1221_12_0588_B_1_FINAL_ORDER_1912815.pdf	2022-04-01	null	CH-1221	NP
4,498	https://www.mspb.gov/decisions/nonprecedential/CORUM_SANDRA_R_DC_0353_06_0728_X_1_FINAL_ORDER_1912150.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD SANDRA R. CORUM, Appellant, v. UNITED STATES POSTAL SERVICE, Agency. DOCKET NUMBER S DC-0353 -06-0728 -X-1 DC-0353 -06-0728 -C-1 DATE: March 31, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sandra R. Corum , Manassas, Virginia, pro se. LaDonna L. Griffith -Lesesne , Esquire, Landover, Maryland, for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 This compliance proceeding was initiated by the appellant ’s March 14, 2014 petition for enforcement of the Board’s July 10, 2012 Opinion and Order in Corum v. U.S. Postal Service , MSPB Docket No. DC -0353 -06-0728 -I-1. On September 6, 2016, the Board issued a nonprecedential order finding the agency 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c). 2 in partial noncompliance with the July 10, 2012 Opinion and Order . Corum v. U.S. Postal Service , MSPB Docket No. DC -0353 -06-0728 -C-1, Order (Sept. 6, 2016); Corum v. U.S. Postal Service , MSPB Docket No. DC -0353 -06-0728 -C-1, Compliance Petition for Review (CPFR ) File, Tab 1 0, Compliance Order (CO). For the reasons discussed below, we now find the agency in compliance and DISMISS the petition for enforcement. DISCUSSION OF ARGUME NTS AND EVIDENCE ON COMPLIANCE ¶2 On July 26, 2006, the appellant filed an appeal alleging improper denial of her request for reinstatement following a compensable injury. Corum v. U.S. Postal Service , MSPB Docket No. DC -0353 -06-0728 -I-1, Initial Appeal File (IAF), Tab 1 at 3-4. On April 12, 2007, the administrative judge issued an initial decision dismissing her appeal for lack of jurisdiction. IAF, Tab 25, Initial Decision . Following the appellant’s petition for review, the Board issued a July 10, 2012 Opinion and Order reversing the denial of jurisdiction, finding that the agency arbitrarily and capriciously denied her restoration, and ordering the agency to conduct a proper job search. Corum v. U.S. Postal Service , MSPB Docket No. DC-0353 -06-0728 -I-1, 118 M.S.P.R. 288 (2012); Corum v. U.S. Postal Service , MSPB Docket No. DC -0353 -06-0728 -I-1, Petition for Review File, Tab 7 , Opinion and Order . ¶3 On March 14, 2014, the appellan t filed a petition for enforcement of the Board’s July 10, 2012 Opinion and Order . Corum v. U.S. Postal Service , MSPB Docket No. DC -0353 -06-0728 -C-1, Compliance File (CF) , Tab 1. On November 6, 2015, the administrative ju dge issued a compliance initial decision finding the agency in compliance with the Board’s July 10, 2012 Opinion and Order . CF, Tab 30, Compliance Initial Decision . ¶4 On December 9, 2015, the appellant filed a petition for review of the compliance initial decision , chal lenging only the administrative judge’s findings on the appellant’s restored annual leave and the calculation of her overtime back 3 pay. CPFR File, Tab 1 . On September 6, 2016, the Board issued a nonprecedential order affirming the compliance initial deci sion in part and reversing the decision in part . CO. The Board found the agency in compliance regarding the restored annual leave, but not in compliance for the appellant’s overtime back pay because it failed to consider a similarly situated employee in calculating the overtime back pay.2 CO at 5 -9. The Board referred the matter to the Office of General Counsel to obtain compliance. ANALYSIS ¶5 The Board’s September 6, 2016 Order instructed the agency to recalculate the appellant’ s overtime back pay and include in its calculations the overtime hours of an employee similarly situated to the appellant who was not considered in the agency’s original overtime calculation. CO at 8 -9. On November 4, 2016, the agency submitted a pleadin g demonstrating that it had recalculated the appellant’s overtime back pay and included the overtime hours of the previously excluded similarly situated employee in its calculations. Corum v. U.S. Postal Service , MSPB Docket No. DC -0353 -06-0728 -X-1, Compl iance Referral File (CRF), Tab 2 at 4-6. On November 14, 2016, the agency submitted a supplemental pleading demonstrating that it paid the recalculated overtime back pay to the appellant.3 CRF, Tab 3 at 4-7. On May 22, 2018, the Board noted that the agency appeared to have changed its methodology for calculating the appellant’s overtime back pay beyond what was ordered and directed the agency to explain its change. CRF, Tab 5 at 2-3. 2 The Board’s September 6, 2016 Order is incorporated into this Final O rder by reference. 3 On June 6, 2018, the agency submitted a second supplemental pleading indicating that interest on the recalc ulated overtime back pay was paid to the appellant on November 18, 2016, and that the agency had simply neglected to inform the Board of the interest payment at that time. CRF, Tab 7 at 4 -13. 4 ¶6 On June 1, 2018, the agency submitted a pleading explaining that when it previously attempted to pay the appellant funds for overtime back pay on February 6 and August 1, 2014, it calculated the funds for the payment based on a mistaken belief about the appellant’s position. CRF, Tab 6 at 4-6. The agency also indicate d, however, that this mistake eventually led to the appellant being paid for significantly more overtime hours for the time period of the 24 th pay period of 2008 through the year 2013 than she otherwise would have been entitled to, had the agency used the proper methodology for determining her overtime back pay.4 Id. at 5-6. The agency stated that, because its incorrect methodology led to the appellant receiving significantly more funds than she otherwise would have been entitled to, it believed it was in compliance concerning the funds owed to the appellant for her overtime back pay for that time period. Id. On June 15, 2018 , the appellant submitted a reply to the agency ’s June 1 and June 6, 2018 response s, and in th at reply , the appellant argued that the agency was not in compliance because it utilized the aforementioned incorrect methodology to determine her overtime back pay . CRF, Tab 8 at 1-2. ¶7 When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation she would have been in had the wrongful personnel action not occurred. House v. Department of the Army , 98 M.S.P.R. 530 , ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. Id., ¶ 6. An agency’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319 , ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported 4 The agency’s original, incorrect calculation led to her re ceiving approximately 338 hours of overtime back pay, whereas its revised calculation would have resulted in her only being paid for approximately 126 hours of overtime back pay. CRF, Tab 6 at 5-6. 5 assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325 , ¶ 5 (2010). A careful review of the agency’ s latest submission shows that the agency has now reached full complian ce. Viewed together with the agency’s narrative statements, the agency’s submitted documentation demonstrates that the agency properly calculated the appellant’s overtime back pay using the correct comparators and paid the appellant an amount at least equ al to what it owed her , along with interest . While the agency ultimately did not use the correct method to determine the appellant’s overtime back pay, its error re sulted in her earning more overtime back pay than she otherwise would have received under t he proper methodology , and thus leads to the conclusion that the ag ency was in compliance with the requirement to pay her the correct amount of overtime back pay owed. Therefore, we find that the agency is now in full compliance with the Board’s July 10, 2012 Opinion and Order . ¶8 Accordingly, the Board finds that the agency is in compliance and dismisses the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(b) ( 5 C.F.R. § 1201.183 (b)). 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). Altho ugh we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a 5 Since the issuance of the initial decision in this matt er, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter. 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 f ile within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a p etition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 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, o n unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit ), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C . § 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 via commercia l delivery or by a method requiring a signature, it must be 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 l isted in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 practi ce described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 201 8, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 132 Stat. 1510. 9 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 at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D .C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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	CORUM_SANDRA_R_DC_0353_06_0728_X_1_FINAL_ORDER_1912150.pdf	2022-03-31	null	S	NP
4,499	https://www.mspb.gov/decisions/nonprecedential/SHIBUYA_MELVIN_Y_DE_1221_09_0295_B_1_FINAL_ORDER_1912189.pdf	UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD MELVIN Y. SHIBUYA, Appellant, v. DEPARTMENT OF AGRICU LTURE, Agency. DOCKET NUMBER S DE-1221 -09-0295 -B-1 DE-1221 -10-0390 -B-1 DE-0752 -11-0097 -B-1 DATE: March 31, 2022 THIS FINAL ORDER IS NONPRECEDENTIAL1 David S. Handsher , Esquire, San Francisco, California, for the appellant. Deryn Sumner , Esquire, and Gary M. Gilbert , Esquire , Silver Spring, Maryland, for the agency. Inga Bumbary -Langston , Esquire, Washington, D.C. , for the agency. BEFORE Raymond A. Limon , Vice Chair Tristan L. Leavitt , Member FINAL ORDER ¶1 The agency has filed a petition for review of the remand initial decision, which reversed the appellant’s demotion and granted his request for corrective action in his individual right of action (IRA) appeals . For the reasons discussed 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not 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 below, we DENY the agency’s petition for review. Except as expressly MODIFIED by this Final Order to find that the Chief Financial Office r (CFO) was not similarly situated to the appellant , we AFFIRM the remand initial decision in these joined appeals . BACKGROUND ¶2 The instant petition for review is before us following a Board ‑ordered remand of the appellant’s joined appeals . See Shibuya v . Department of Agriculture , 119 M.S.P.R. 537 , ¶ 38 (2013). The following essential facts are undisputed. ¶3 The appellant was employed as a GS‑14 Branch Chief of Employee Relations at the U.S. Forest Service, a subpart of the U.S. Department of Agriculture . Id., ¶ 4. In April 2008, the appellant disclosed to the Office of Special Counsel (OSC) that the CFO of the Forest Service misused , and was delinquent in paying, his Government credit card and that the agency had failed to take any action on the matter .2 Id., ¶ 2. In November 2008, the appellant told an agency manager about his disclosure to OSC regarding the CFO’s misconduct. Id., ¶ 24. In December 2008, the agency began investigating the appellant for alleged misconduct concerning his advice to agency officials to destroy emails that he believed were potentially discoverable in future litigation . Id., ¶ 2. W hile the investigation was pending, the agency relocated his office and changed his duties . Id., ¶¶ 2, 10 . As a result of these actions, the appellant filed his first IRA 2 Ultimately, OSC referred the appellant’s allegations about the CFO to the Office of the Secretary of Agriculture, which referred the allegations to the Office of the Inspector General (OIG). Shibu ya v. Department of Agriculture , MSPB Docket No. DE-1221 -09-0295 -W-2, Appeal File (0295 W -2 AF), Tab 18, Subtab B at 6. On August 12, 2009, OIG issued a report of investigation that substantiated the appellant’s allegations and criticized the agency and t he Forest Service for the delay in removing the CFO and for awarding him a $13,000 performance award in December 2008 and a salary increase in 2009, when they knew that the Office of Human Capital Management was proposing the CFO’s removal. 0295 W -2 AF, Tab 18, Subtab B. 3 appeal alleging that the agency removed his supervisory duties, investigated him for misconduct, and moved him to a different office in retaliation for his disclosure to OSC regarding the CFO’s misco nduct . Shibuya v. Department of Agriculture , MSPB Docket No. DE -1221 -09-0295 -W-1, Initial Appeal File (0295 IAF), Tab 1; Shibuya v. Department of Agriculture , MSPB Docket No. DE-1221 - 09-0295 -W-2, Appeal File (0295 W-2 AF), Tab 18, Subtab B at 40, 75.3 ¶4 On December 16, 2009, as a result of the aforementioned investigation, the agency proposed to demote the appellant from a GS ‑14 Branch Chie f of Employee Relations to a GS ‑13 Human Resource Liaison on the basis of the following two charge s: (1) poor judgment —soliciting t he unauthorized destruction of G overnment records when, in emails dated June 29, August 12, and September 26, 2007, and September 24, 2008, the appellant advised employees to destroy emails that he believed were discoverable in future third -party proceedings ; and (2) poor judgment —conduct unbecoming a F ederal employee, alleging that he engaged an outside attorney contracto r to “launder” case analyses drafted by agency employees to create the appearance that the analyses were subject to attorney -client or work -product privilege s, thereby protecting the analyses from disclosure in third -party proceedings. Shibuya , 119 M.S.P.R. 537 , ¶ 4. The appellant then filed a second IRA appeal alleging that the agency proposed to demote him in retaliation for his disclosure regarding the CFO. Shibuya v. Department of Agriculture , MSPB Docket No. DE -1221 -10-0390 -W-1, Initial Appeal File, Tab 1. ¶5 On M ay 11, 2010, the agency informed the appellant that his demotion would become effective on June 6, 2010. Shibuya , 119 M.S.P.R. 53 7, ¶ 5. He appealed the demotion to the Board under chapter 75 , raising an affirmative 3 At the appellant’s request, the administrative judge dismissed the appellant’s first IRA appeal without prejudice pending completion of an agency investigation. 0295 IAF, Tab 13. The appeal was refiled in May 2010. 0295 W -2 AF, Tab 1. 4 defense of whistleblower reprisal . Shibuya v. Department of Agriculture , MSPB Docket No. DE‑0752‑11‑0097‑I‑1, Initial Appeal File, Tab 1. ¶6 The administrative jud ge joi ned the chapter 75 appeal with the two IRA appeals . 0295 W-2 AF , Tab 11. After holding the requested hearing, she issued an initial decision reversing the demotion on the ground that the agency failed to prove either charge , and granting corrective action in the IRA appeals . 0295 W-2 AF, Tab 37, Initial Decision (ID). The agency filed a petition for review of the initial decision. Shibuya v. Department of Agriculture , MSPB Docket No. DE-1221 -09-0295 -W-2, Petition for Revie w Fil e, Tab 1. ¶7 In an Opinion and Order, t he Board vacated the initial decision and remanded the matter for further adjudication. Shibuya , 119 M.S.P.R. 537 , ¶ 38. Regarding the chapter 75 appeal, the Board found that the administrative judge erred in finding that the agency failed to prove the charges underlying the demotion and instead sustained both charges . Id., ¶¶ 10-17. The Board thus ordered the administrative judge to determine in the first instance on remand whether the agency established a nexus between the charges and the efficiency of the service and the reasonableness of the penalty . Id., ¶¶ 1 8, 38. ¶8 As to the appellant’s whistleblower reprisal affirmative defense, the Board affirmed the administrative judge’s findings that the appellant made a protected disclosure when he informed OSC of the CFO’s Government credit card abuse and that the protected disclosu re was a contributing factor in the agency’s decision to demote him. Id., ¶¶ 21, 23‑24. The Board further affirmed the administrative judge’s finding s in the joined IRA appeals that the appellant’s protected disclosure was a contributing factor in the agency’s decis ion to significantly change his duties, to relocate his office, and to propose his demotion .4 Id., ¶¶ 27, 30. Because the administrative judge originally found that 4 The Board found that it was appropriate to consider the evidence regarding the agency ’s investigation into the appellant’ s alleged misconduct in analyzing whether the agency demoted him in reprisal for his whistleblowing, but did not affirm the 5 the agency’s failure to prove the charges underlying the demotion undermined the strength of its evidence in support of its actions, the Board ordered the administrative judge to reweigh the evidence in light of the sustained charges and to determine whether the agency established by clear and convincing evidence5 that it would hav e taken the same actions in the absence of the appellant’s protected disclosure . Id., ¶¶ 36-38. ¶9 On remand, the administrative judge found that the agency established a nexus between the appellant’s misconduct and the efficiency of the service and that the penalty of a demotion was within the tolerable limits of reasonableness for the sustained charges . Shibuya v. Department of Agricu lture , MSPB Docket No. DE-1221 -09-0295 -B-1, Remand File, Tab 18, Remand Initial Decision (RID) at 5. However, in considering the appellant’s affirmative defense, she concluded that the agency failed to establish by clear and convincing evidence that it wo uld have demoted the appellant in the abse nce of his protected disclosure and, therefore, reversed the demotion. RID at 9. Concerning the appellant’s IRA appeals, t he administrative judge found that the agency failed to show by clear and convincing evide nce that it would have removed the appellant’s supervisory duties, investigated him, relocated his office, and proposed his demotion in the abse nce of his protected disclosure. Id. Therefore, the administrative judge granted his request for corrective ac tion. RID at 10. ¶10 The agency has filed a petition for review of the remand initial decision, and the appellant has responded in opposition to the agency’s petition for review. Shibuya v. Department of Agriculture , MSPB Docket No. DE -1221 -09-0295 -B-1, Remand Petition for Review (RPFR) File, Tab s 1, 3. administ rative judge’s finding that the investigation itself was a covered personnel action under 5 U.S.C. § 2302 (a)(2)(A). Shibuya , 119 M.S.P.R. 537 , ¶ 22 n.12. 5 Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be establish ed. 5 C.F.R. § 1209.4 (e). 6 DISCUSSION OF ARGUME NTS ON REVIEW6 ¶11 On review, the parties do not challenge the administrative judge’s findings that the agency established a nexus between the charge and the efficiency of the service and the reasonableness of the penalty for the sustained charges. RPFR File, Tabs 1, 3. Furthermore, the parties do not challenge the administrative judge’s finding that the agency failed to show by clear and convincing evidence that it would have changed the appellant’s duties, moved his office, and proposed his demotion absent his protected disclosure. Id. We have reviewed the record and discern no basis to disturb these findings. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 105‑06 (1997) (finding no reason to d isturb the administrative judge’ s findings when she co nsidered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility). Therefore, the only issue on review concerns the appellant’s affirmative defense of whistleblower reprisal; specifically, whether the a dministrative judge correctly determined that the agency failed to show by clear and convincing evidence that it would have demoted the appellant in the absence of his protected disclosure. ¶12 In an adverse action ap peal, an appellant’ s claim of whistleblow er reprisal is treated as an affirmative defense. Campbell v. Department of the Army , 123 M.S.P.R. 674 , ¶ 11 (2016). In such appeals , once the agency proves its adverse action case by a preponderance of the evidence ,7 the appellant must show by preponderant evidence that he engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302 (b)(8) and that the disclosure was a contributing factor in the agency’ s personnel action. Id.; 5 C.F.R. § 1201.56 (b)(2)(i)(C). When, as here, the appellant makes such a showing , the 6 We have reviewed the relevant legislation enacted during the pendency of this appeal and have concluded that it does not a ffect the outcome of the appeal . 7 Preponderance of the evidence is defined by regulation as that degree of relevant evidence which 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 Board will order corrective action unless the agency shows by clear and convincing evidence that it would have taken the personnel action in the absence of the whistleblowing. 5 U.S.C. § 1221 (e)(2); Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285 , ¶ 28 (2013). ¶13 In determining w hether an agency has shown by clear and convincing evidence that it would have taken the personnel action in the absence of the whistleblowing , the Board generally will consider the following factors: (1) the strength of the agency’ s evidence in support o f its action ; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers but who a re otherwise similarly situated. Carr v. Social Security Administrati on, 185 F.3d 1318 , 1323 (Fed. Cir. 1999) . The Board does not view these factors as discrete elements, each of which the agency must prove by clear and convincing evidence, but rather weighs these factors together to determine whether the evidence is clear and convincing as a whole. Alarid v. Department of the Army , 122 M.S.P.R. 600 , ¶ 14 (2015). The Board must consider all of the evidence, including evidence that detracts from the conclusion that the agency met its burden. Whitmore v. Department of Labor , 680 F.3d 1353 , 1368 (Fed. Cir. 2012). The administrative judge properly determined that the strength of the agency’s evidence in support of the demotion was undermined by its response once it learned of the appellant’s misconduct , and its handling of the disciplinary action . ¶14 As to the first Carr factor, i n the remand initial decision, the administrative judge found that the agency’s response once it learned of the appellant’s alleged misconduct undermined the strength of its evidence in support of the demotion. RID at 6 -7. In so finding, she relied on the following findings of fact from the earlier initial decision, which the Board affirmed in the prior Opinion and Order : The proposing official never reviewed the evidentiary package supporting the proposed demotion; the proposing official failed to order a customary case analysis for the matter; the individual 8 advising the proposing official rejected a case analysis by the servicing personnel office that recommended a 30 -day suspension without even discussing it with the proposing official; the deciding official lacked understanding of the evidence supporting the demotion action; and the appellant remained responsible for leading and providing advice and policy in the position to which he was demoted even though the agency ’s proffered reason for the demotio n was to take such responsibilities away from him. RID at 6 -7; Shibuya , 119 M.S.P.R. 537 , ¶¶ 33, 36; ID at 38 -42. The administra tive judge concluded that these actions suggested a “rush to judgment.” RID at 6 -7. ¶15 On review, the agency argues that the administrative judge erred in finding that the deciding official did not have any familiarity with the evidentiary record and that the agency’s actions once it learned of the appellant’s misconduct suggested a “rush to judgment .” RPFR File, Tab 1 at 6‑13; RID at 6 -8. The appellant argues that these issues already were affirmed by the Board’s earlier Opinion and Order and that reliti gating them now contravenes the law -of-the-case doctrine. RPFR File, Tab 3 at 14 -18. ¶16 The law -of-the-case doctrine limits relitigating an issue that already was decided in a different stage of the same litigation. Nease v. Department of the Army , 103 M.S.P.R. 118 , ¶ 10 (2006) . Under this doctrine , the Board generally will not reconsider a n issue it already decided in a p rior proceeding unless an exception exists, such as the availability of new and substantially different evidence, a contrary decision of law by a controlling authority that applies to the question at issue, or a showing that the prior decision in the same appeal was clearly erroneous and would work a manifest injustice. See Mangano v. Department of Veterans Affairs , 109 M.S.P.R. 658 , ¶ 24 (2008). ¶17 Here, the Board affirmed the administrative judge’s earlier findings of fact, as set forth above, regarding the agency’s response once it learned of the appellant’s alleged misconduct. The agency has not identified any basis to find that an exception to the law -of-the-case doctrine applies. Therefore, i nsofar as 9 the agency seeks to reargue these findings of fact, we invoke the law -of-the-case doctrine and decline to reconsider our prior findings . See Seas v. U.S. Postal Service , 78 M.S.P.R. 569 , 573 (1998) ( invoking the law -of-the-case doctrine and declining to reconsider prior findings the Board made regarding the merits of the agency’s charges). ¶18 However, the administrative judge determined for the first time on remand that the factual findings regarding the agency’s response indicated a “rush to judgment.” RID at 6 -7. As the Board previously did not affirm this f inding , the law-of-the-case doctrine does not apply. Nonetheless, we agree with the administrative judge’s determination that these agency actions reflect a rush to judgment. ¶19 Although the Board affirmed the administrative judge’s finding that the decidi ng official lacked an understanding of the evidence supporting the demotion action, it did not expressly affirm the administrative judge’s finding that the deciding official had no familiarity with the evidentiary record. Shibuya , 119 M.S.P.R. 537 , ¶ 33. Therefore, the law-of-the-case doctrine does not apply to this particular finding . However, we find that the fact that the decid ing official lacked an understanding of the evidence weighs against the agency and warrants the same result as if the deciding official had no familiarity with the evidentiary record . ¶20 In the remand initial decision, the administrative judge also reiterate d her prior finding that the agency largely ignored evidence relevant to the severity of the appellant’s misconduct as it was moving forward with disciplinary action, as evidenced by the following factors: No one in the agency expressed contemporaneous co ncerns about the appellant ’s solicitation of record destruction; some of the solicitations predated any specific agency rule forbidding them; the appellant was unaware of the impropriety of the solicitations; the appellant stopped the solicitations as soon as he was ordered to do so; the appellant ’s improper arrangement with [the outside attorney] 10 was of limited scope; and the appellant ’s conduct was based on the [outside attorney ’s] advice. RID at 7 (internal citations omitted). The agency does not challenge this finding on review, RPFR File, Tab 1, and we discern no basis to disturb it. ¶21 In sum, we agree with the administrative judge’s finding that the agency’s response once it learned of the appel lant’s misconduct and its handling of the disciplinary action undermine the strength of the evid ence in support of the demotion . Therefore, we find that the first Carr factor does not weigh in favor of the agency. The administrative judge properly determi ned that the proposing and deciding officials had a strong motive to retaliate against the appellant. ¶22 Regarding the second Carr factor, the administrative judge found that the proposing official had a strong motive to retaliate against the appellant becau se she was upset with the appellant’s decision to make the disclosure to OSC and viewed the appellant as acting self -righteously and outside the chain of command. RID at 8. The administrative judge also found it appropriate to impute the proposing offici al’s strong motive to retaliate to the deciding official. Id. ¶23 On review, t he agency argues that the administrative judge erred in finding that the proposing and deciding official s held a “strong motive” to re taliate because they were not implicated by the appellant’s disclosures or involved in the matters disclosed . RPFR File, Tab 1 at 11, 14. However, it is not necessary that an agency official be directly implicated or harmed by an appellant’s disclosures to establish a substantial retaliatory motive when, as here, the disclosures reflect poorly on the agency and, by implication, on the management officials . See Robinson v. Department of Veterans Affairs , 923 F.3d 1004 , 1019 (Fed. Cir. 2019) ( explaining that those responsible for the agency’s overall performance may well be motivated to retaliate, even if they are not directly implicated by the disclosures, as the criticism reflects on them in their capacit ies as managers and employees); Whitmore , 680 F.3d at 1370-71 (finding that the appellant’ s 11 criticisms cast the agency and , by implication , all of the responsible officials , in a highly critical light by calling into question the propriety and honesty of their official conduct); Chambers v. Department of the Interior , 116 M.S.P.R. 17 , ¶ 69 (2011) (finding motive to retaliate because the appellant’ s disclosures reflected on the responsible agency officials as representatives of the general institutional interests of the agency) . Here, the appellant’s protected disclosure resulted in agency and OIG investigation s that were highly critical of the agency’s response to allegations of financial misconduct by a member of the agency’s Senior Executive Service (SES) . RID at 8; 0295 W-2 AF, Tab 18, Subtab B . Moreover, the Board previously found that the proposing and decidin g officials knew of the appellant’s disclosures before they proposed and sustained , respectively, the appellant’s demotion . Shibuya , 119 M.S.P.R. 537 , ¶ 23. Therefore, we find that both the proposing official and the deciding official, as members of the SES, had a substantial motive to retaliate because the appellant’s disclosure, which reflected poorly on the agency in general, reflected on them as well . See Whitmore , 680 F.3d at 1370 -71. ¶24 The agency also argues that, contrary to the administrative judge’s finding, the proposing official was not upset with the appellant’s disclosure to OSC. RPFR File, Tab 1 at 7 -10. However, the Board previously affirmed the administrative judge’s finding that the proposing official admitted to her disapproval of and distress over the appellant’s whistleblowing activity , Shibuya , 119 M.S.P.R. 537 , ¶¶ 35-36, and we decline to reconsider this issue now pursuant to the law-of-the-case doctrine. See Seas , 78 M.S. P.R. at 573. In addition, we agree with the administrative judge’s determination that the proposing official ’s handling of the proposed demotion demonstrated a “rush to judgment” because she did not review the evidentiary package supporting the proposed d emotion and failed to order a customary case analysis for the matter . RID at 6. In light of the foregoing, we find no basis to disturb the administrative judge’s determination that the proposing official had a strong motive to retaliate against the appel lant. 12 ¶25 The agency next argues that the administrative judge erred in finding that the proposing official’s retaliatory motive could be imputed to the deciding official because the deciding official testified that he never had any conversations with the pro posing official about the appellant ’s disclosure . RPFR File, Tab 1 at 14-15. Because Federal employees generally must rely on circumstantial evidence to prove a motive to retaliate, the Board will consider any motive to retaliate on the part of the agenc y official who ordered the action, as well as any motive to retaliate on the part of other agency official s who influenced the decision. Whitmore , 680 F.3d at 1371 . F or example, a “proposing official ’s strong motive to retaliate may be imputed to a deciding official” in some circumstances. Id. (citing Chambers , 116 M.S.P.R. 17 , ¶ 58). Here, g iven that the deciding official sustain ed the proposed demotion without understanding the evidence supporting the demotion, Shibuya , 119 M.S.P.R. 537 , ¶ 33, we ag ree with the administrative judge’s decision that it was appropriate to impute the proposing official’s motive to retaliate to the deciding official . RID at 8. The administrative judge correctly determined that agency failed to show that it took similar actions against similarly situated nonwhistleblowers , but we modify the initial decision to find that the CFO was not similarly situated to the appellant. ¶26 In the remand initial decision , the administrative judge found that the agency failed to show that it took similar actions against similarly situated nonwhistleblowers and that, to the contrary, it treated the CFO, a nonwhistleblower, less harshly than it treated the appellant . RID at 8 -9. ¶27 On review, t he agency argues that the administrative judge er red in finding that the CFO was similarly situated to the appellant because their alleged misconduct and other circumstances regarding their employment were not simila r. RPFR F ile, Tab 1 at 15 -17. Specifically, the agency asserts that the CFO was a SES‑level employee, stationed in Texas, while the appellant occupied a GS-14 human resources position and was stationed in New Mexico. Id. at 16. The 13 agency further asserts that the CFO was accused of improperly charging rental car costs to the Federal Governm ent and the investigation into his misconduct was handled at the agency level, while the appellant was accused of two counts of poor judgment and the investigation was handled by the Forest Service at the direction of the agency’s Office of the General Counsel. Id. The agency also contends that the two are not similarly situated because the appellant was demoted, while the CFO was removed. Id. ¶28 The appe llant argues that the Board already has affirmed the administrative judge’s finding that the CFO was s imilarly situated to the appellant and that the comparison is useful to show that the agency treated the CFO, a nonwhistleblower, less harshly than it treated the appellant by awarding him a performance award and a salary increase after the alleged miscond uct and by not expeditiously conducting an investigation after learning about his alleged misconduct . RPFR File, Tab 3 at 21-23. ¶29 As an initial matter, the Board previously affirmed the administrative judge’s finding that the agency treated the CFO, a nonwhistleblower, less harshly than it treated the appellant. Shibuya , 119 M.S.P.R. 537, ¶¶ 34, 36. However, the Board did not make any finding as to whether the CFO was similarly situated to the appellant. Id. Therefore, the law -of-the-case doctrine does not apply to the issue of whether the CFO was similarly situated to the appellant . See Nease , 103 M.S.P.R. 118 , ¶ 10. ¶30 For an emp loyee to be considered similarly situated to an appellant who is disciplined, his conduct and the surrounding circumstances must be similar. Carr , 185 F.3d at 1326. Our reviewing court has emphasized, however, that comparison employees must be similarly situated to the appellant , “not identically situated. ” Whitmore , 680 F.3d at 1373 (emphasis added) . “[T]he requisite degree of similarity between employees cannot be construed so narrowly that the only evidence helpful to the inquiry is completely disre garded. ” Id. “Differences in 14 kinds and degrees of conduct” should be considered in evaluating the evidence regarding Carr factor three. Id. ¶31 Here, notwithstanding the broad interpretation of “similarly situated ” in this context, we find that the CFO is not similarly situated to the appellant. As noted by the agency, the CFO and the appellant did not engage in similar conduct, did not occupy similar positions, and did not work in the same state , and different departments handled the investigations into their misconduct . 0295 W-2 AF, Tab 18, Subtab B , Tab 24 . The appellant has not shown any similarities between the two individuals, and we discern no basis to conclude th at they are similarly situated for the purpose of a Carr‑factor analysis simply because they both worked for the Forest Service and were both investigated for misconduct at around the same time . Accordingly, we modify the remand initial decision to find that the CFO was not similarly situated to the appellant. Nonetheless, wh en, as here, the agency fails to present evidence showing that it has treated similarly situated nonwhistleblowers in a similar manner, the absence of such evidence may weigh against the agency. Whitmore , 680 F.3d at 1374 -75. Therefore , we find that Carr factor three still weighs against the agency. The administrative judge correctly determined that the agency failed to show by clear and convincing evidence that it would have demoted the appellant absent his protected disclosure. ¶32 The agency argues that, c ontrary to the administrative judge’s determination, it established by clear and convincing evidence that it would have demoted the appellant absent his protected disclosure because his misconduct was egregious and serious. RPFR File, Tab 1 at 17 -23. As discussed above , however, we find no basis to disturb the administrative judge’s determination that the strength of the agency’s evidence in support of the demotion action was undermined by the surrounding circumstances . Further, we have affirmed the admi nistrative judge’s finding that both the proposing and deciding officials had a strong motive to retaliate against the appellant. Regarding the third Carr factor, 15 we find that the agency’s failure to present evidence as to its treatment of similarly situated nonwhistleblowers tends to weigh against it. ¶33 Weighing the Carr factors , the administrative judge concluded that, even though the agency proved the charges, it failed to show by clear and convincing evidence that it would have demoted the appellant in the absence of his protected disclosure. RID at 9. The agency ’s arguments on review provide no basis to disturb this well -reasoned finding . See Crosby , 74 M.S.P .R. at 105‑06. Therefore, we agree with the administrative judge’s finding that the appellant proved his affirmative defense of whistleblower reprisal and that the demotion action must be reversed. ORDER ¶34 We ORDER the agency to cancel the appellant’s demot ion, restore him to the GS -201-14 Supervisory Human Resource Specialist position (Branch Chief, Human Resources and Labor Relations) effective June 6, 2010 , and to place the appellant as nearly as possible in the position to the situation he would have bee n in absent the agency ’s retaliatory action s at issue in the IRA appeals . See Kerr v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984) ; 5 U.S.C. § 1221 (g)(1) . The agency must complete this action no later than 20 days after the date of this decision. ¶35 We also ORDER the agency to pay the appellant the correct amount of back pay, interest on back pay, and other benefits under the Office of Personnel Management’s regulations, no later than 60 calendar days after the date of this decision. We ORDER the app ellant to cooperate in good faith in the agency’s efforts to calculate the amount of back pay, interest, and benefits due, and to provide all necessary information the agency requests to help it carry out the Board’s Order. If there is a dispute about the amount of back pay, interest due, and/or other benefits, we ORDER the agency to pay the appellant the undisputed amount no later than 60 calendar days after the date of this decision. 16 ¶36 We further ORDER the agency to tell the appellant promptly in writing when it believes it has fully carried out the Board’s Order and of the actions it has taken to carry out the Board’s Order. The appellant, if not notified, should ask the agency about its progress. See 5 C.F.R. § 1201.181 (b). ¶37 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 t his 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 dat es and results of any communications with the agency. 5 C.F.R. § 1201.182 (a). ¶38 For agencies whose payroll is administered by either the National Finance Center of the Department of Agric ulture (NFC) or the Defense Finance and Accounting Service (DFAS), two lists of the information and documentation necessary to process payments and adjustments resulting from a Board decision are attached. The agency is ORDERED to timely provide DFAS or N FC with all documentation necessary to process payments and adjustments resulting from the Board’s decision in accordance with the attached lists so that payment can be made within the 60 ‑day period set forth above. NOTICE TO THE APPELL ANT REGARDING YOUR R IGHT TO REQUEST ATTORNEY FEES AND CO STS You may be entitled to be paid by the agency for your reasonable attorney fees and costs. To be paid, you must meet the requirements set forth at title 5 of the United States Code (5 U.S.C.), sections 7701(g), 1221 (g), or 1214(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If you believe you meet these requirements, you must file a motion for attorney fees and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. 17 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 CONSEQUENTIAL DAMAGE S You may be entitled to be paid by the agency for your consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages. To be paid, you must meet the requirements set out at 5 U.S.C. §§ 1214 (g) or 1221(g). The regulations may be found at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.204 . If you believe you meet these requirements, you must file a motion for consequential damages WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file your motion with the office that issued the initial decision on your appeal. NOTICE TO TH E PARTIES A copy of the decision will be referred to the Special Counsel “to investigate and take appropriate action under [5 U.S.C.] section 1215,” based on the determination that “there is reason to believe that a current employee may have committed a prohibited personnel practice” under 5 U.S.C. § 2302 (b)(8) or section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221 (f)(3). Please note that while any Special Counsel investigation related to this decision is pending, “no disciplinary action shall be taken against any employee for any alleged prohibited activity under investigation or for any related activity without the approval of the Special Counsel.” 5 U.S.C. § 1214 (f). 18 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 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). 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. 19 If you submit a petition for review to the U.S. Court of Appeals 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 Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any a ttorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and tha t such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of 20 discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court ‑appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a . Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C . § 7702 (b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 21 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.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703 (b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 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 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, 2 017. The All Circuit Review Act, 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. 22 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case . Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/Cour tWebsites.aspx . FOR THE BOARD: Washington, D.C. /s/ for Jennifer Everling Acting Clerk of the Board DEFENSE FINANCE AND ACCOUNTING SERVICE Civilian Pay Operations DFAS BACK PAY CHECKLIST The following documentation is required by DFAS Civilian Pay to compute and pay back pay pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following checklist to ensure a request for payment of back pay is complete. Missin g documentation may substantially delay the processing of a back pay award. More information may be found at: https://wss.apan.org/public/DFASPayroll/Back%20 Pay%20Process/Forms/AllItems.aspx . NOTE: Attorneys’ fees or other non -wage payments (such as damages) are paid by vendor pay, not DFAS Civilian Pay. ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the specific dates of the back pay period within the ticket comments. Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket comments as to why the documentation is not applicable: ☐ 2) Settlement agreement, administrative determinatio n, arbitrator award, or order. ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. ☐ 4) All required SF50s (new, corrected, or canceled). *Do not process online SF50s until notified to do so by DFAS Civilian Pay.* ☐ 5) Certified timecards/corrected timecards. *Do not process online timecards until notified to do so by DFAS Civilian Pay.* ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). ☐ 7) Outside earnings documentation. Include record of all amounts ea rned 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’ compen sation, CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, or severance pay received by the employee upon separation. Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment they may have received. The payroll office must collect the debt from the back pay award. The annual leave will be restored to the employee. Annual leave that exceeds the annual leav e ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). NATIONAL FINANCE CEN TER CHECKLIST FOR BA CK PAY CASES Below is the information/documentation required by National Finance Center to process payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit Systems Protection Board, EEOC, and courts . 1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information describing what to do in accordance with decisi on. 2. The following information must be included on AD -343 for Restoration: a. Employee name and social security number. b. Detailed explanation of request. c. Valid agency accounting. d. Authorized signature (Table 63). e. If interest is to be included. f. Check mailing address. g. Indicate if case is prior to conversion. Computations must be attached. h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected (if applicable). Attachments to AD -343 1. Provide pay entitlement to 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.	SHIBUYA_MELVIN_Y_DE_1221_09_0295_B_1_FINAL_ORDER_1912189.pdf	2022-03-31	null	S	NP

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