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4,500 | https://www.mspb.gov/decisions/nonprecedential/TATUM_WILLIE_E_DA_0752_10_0569_X_1_FINAL_ORDER_1912214.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIE E. TATUM, JR.,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER S
DA-0752 -10-0569 -X-1
DA-0752 -10-0569 -C-1
DATE: March 31, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Willie E. Tatum, Jr. , Fort Worth, Texas, pro se.
Nadalynn F. Hamilton , Dallas, Texas, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 In a September 15, 2015 Order, the Board affirmed as modified the
compliance initial decision, which granted the appellant’s petition for
enforcement and found the agency in noncompliance with the September 15,
2014 final decision in MSPB Docket No. DA-0752-10-0569 -B-1. Tatum v. U.S.
Postal Service , MSPB Docket No. DA-0752 -10-0569 -C-1, Compliance Petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
for Review File, Tab 4. The matter was then referred to the Board’s Office of
General Counsel for issuance of a final decision fully addressing the com pliance
issues raised by the appellant in his petition for enforcement. Tatum v. U.S.
Postal Service , MSPB Docket No. DA -0752 -10-0569 -X-1, Compliance Referral
File (CRF), Tab 1 . For the reas ons set forth below, we DISMISS the petition for
enforcement as settled.
¶2 After referral of this matter to the Board’s Office of General Counsel, the
parties submitted a document entitled “SETTLEMENT AGREEMENT ,” signed
by the agency on February 23, 2018, and by the appellant on February 26, 2018.
CRF, Tab 10 at 8 . The document provides, among other things, that the
appellant agreed to withdraw all pending claims pertaining to his employment
relationship with the agency in exchange for the promises made by the agency .
Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board mu st 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 p arties 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. CRF, Tab 10 . In addition, we find that the
agreement is lawful on its face and that the partie s freely entered into it. Id.
3
Accordingly, we find that dismissing the petition for enforcement “with
prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances, and we accept the settlement ag reement
into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Bo ard to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the se ttlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following 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
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
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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.
5
(2) Judicial or EEOC revie w of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so , you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your represe ntative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
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 f or U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternat ively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such r equest with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representat ive receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in se ction 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Ac t, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit c ourt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Fede ral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are 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 | TATUM_WILLIE_E_DA_0752_10_0569_X_1_FINAL_ORDER_1912214.pdf | 752-10-05 | null | S | NP |
4,501 | https://www.mspb.gov/decisions/nonprecedential/JOLLEY_WILLIAM_B_AT_4324_18_0576_I_2_ORDER_1912258.pdf | 1
UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
WILLIAM B. JOLLEY,
Appellant,
v.
DEPARTMENT OF HOUSIN G AND
URBAN DEVELOPMENT,
Agency.
DOCKET NUMBER S
AT-4324 -18-0576 -I-2
AT-4324 -19-0041 -I-1
DATE: March 31, 2022
THIS ORDER IS NONPRECEDENTIAL1
William B. Jolley , Brunswick, Georgia, pro se.
Magda Lovinsky Chevron and Robert Andrew Zayac, Jr. , Atlanta, Georgia,
for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
ORDER
¶1 These appeals are before us on the administrative ju dge’s April 23, 2019
order s certifying for interlocutory review his order s addressing the appellant’s
claim s under the Appointments Clause of the U.S. Constitution. For the reasons
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
discussed below, w e JOIN the two appeals,2 VACATE the administrative judge’s
ruling and RETURN this case to the regional office for further adjudication
before a different administrative judge consistent with this decision .
DISCUSSION OF ARGUME NTS ON REVIEW
¶2 In each of these appeals, the appellant alleged that the agency discriminated
against him on the basis of his military service in violation of the Uniformed
Services Employment and Reemployment Rights Act of 1994 (codified as
amended at 38 U.S.C. §§ 4301 -4335) (USERRA) by failing to select him for
positions. In his first appeal, Jolley v. Department of Housing & Urban
Development , MSPB Docket No. AT -4324 -18-0576 -I-1, the appellant argued in
part that the Board’s administrative judges3 were not properly appointed under
Lucia v. Securities & Exchange Commission , 138 S. Ct. 2044 (2018), and that the
statutory requirement that Federal employees bring USERRA clai ms before the
Board is unconstitutional. In July 2018, the administrative judge dismissed that
appeal without prejudice to refiling within 90 days pending clarification from the
Board regarding the appointment issue.4 Jolley v. Department of Housing
& Urban Development , MSPB Docket No. AT -4324 -18-0576 -I-1, Initial Appeal
File, Tab 4, Initial Decision. The Board automatically refiled that appeal in
2 Joinder of two or more appeals filed by the same appellant is appropriate when doing
so would expedite case processing and will not adversely affect the parties’ interests.
Savage v. Department of the Army , 122 M.S.P.R. 612 , ¶ 1 n.1 (2015) , clarified by
Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647 (2016) ; 5 C.F.R.
§ 1201.36 (a)-(b). We find that these criteria are satisfied here. After the case is
returned to the regional office, the administrative judge should determine whether it is
appro priate to continue adjudicating the appeals together.
3 The appellant actually referred to the Board’s administrative law judges.
4 In October 2018, the appellant sought review of the Board’s decision before the
U.S. Court of Appeals for the Federal Circui t. However, the Federal Circuit dismissed
that appeal on the Board’s motion, finding that the dismissal of an appeal without
prejudice to refiling is not a final decision for purposes of judicial review. Jolley v.
Department of Housing & Urban Developmen t, No. 2019 -1022, Order (Fed. Cir.
Dec. 28, 2018).
3
October 2018. Jolley v. Department of Housing & Urban Development , MSPB
Docket No. AT -4324 -18-0576 -I-2, Refiled Appeal File ( 0576 RAF), Tab 1. The
refiled appeal was reassigned to a different administrative judge. 0576 RAF,
Tab 2.
¶3 The appellant filed his other appeal, Jolley v. Department of Housing
& Urban Development , MSPB Docket No. AT -4324 -19-0041 -I-1, in
October 2018. The appellant raised the same arguments he had raised in his prior
appeal. Jolley v. Department of Housing & Urban Development , MSPB Docket
No. AT-4324 -19-0041 -I-1, Initial Appeal File ( 0041 IAF), Tab 1. That appeal
was reassigned to the same administrative judge as his refiled appeal. 0041 IAF,
Tab 3. The administrative judge issued an order in both of the appellant’s
pending appeals in which he gave the parties an opportunity to submit briefs
addressing the effect of Lucia on the Board and its administrative judges.
0041 IAF, Tab 20; 0576 RAF, Tab 7. On April 23, 2019, the administrative judge
issued an Order and Certification for Interlocutory Appeal in the appella nt’s two
appeals. 0041 IAF, Tab 22; 0576 RAF, Tab 9. Applying the Su preme Court’s
decision in Lucia , he determined that the Board’s administrative judges are
inferior officers of the United States who must be appointed in accordance with
the Appointments Clause5 and that the appellant was entitled to a hearing before
an of ficial who had been properly appointed. 0041 IAF, Tab 22 at 7; 0576 RAF,
Tab 9 at 7. He certified his ruling for interlocutory appeal and stayed all
proceedings in the appeals pending the Board’s resolution of the interlocutory
appeal. 0041 IAF, Tab 22 at 8; 0576 RAF, Tab 9 at 8.
5 Under the Appointments Clause, the President “shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint . . . Officers of the United States . . .
but the Congress may by Law ves t the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.” U.S. Const. art. II, § 2, cl. 2.
4
ANALYSIS
¶4 An administrative judge will certify a ruling for interlocutory review if the
ruling involves an important question of law or policy about which there is
substantial ground for difference of opinion and an immediate ru ling will
materially advance the completing of the proceeding, or the denial of an
immediate ruling will cause undue harm to a party or the public. Cooper v.
Department of the Navy , 98 M.S.P.R. 683 , ¶ 5 (2005) , review dismissed sub nom.
Weaver v. Department of the Navy , 197 F. App’x 936 (Fed. Cir. 2006) ; 5 C.F.R.
§ 1201.92 . In light of the lack of guidance regarding the impact of the Lucia
decision on the Board, we find that certification was proper.
The appellant’s Appointments Clause claim is now moot.
¶5 In Lucia , the Supreme Court held that Securities & Exchange C ommission
(SEC) administrative law judges qualify as Officers of the United States subject
to the Appointments Clause, rather than as mere employees. Lucia , 138 S. Ct.
at 2049, 2052 -55. Because SEC’s administrative law judges were appointed by
SEC staff members rather than the Commission itself, the Court held that the
appointment of those administrative law judges violated the Appointments
Clause. Id. at 2050 -51.6
¶6 The Court in Lucia held that the remedy for an Appointments Clause
violation “is a new ‘ hearing before a properly appointed’ official. ” Lucia ,
138 S. Ct. at 2055 (quoting Ryder v. United States , 515 U.S. 177 , 182 -83 (1995)).
Here, all of the Board’s administrative judges have now received appointments
ratified by the head of the agency, thereby satisfying the requirements of the
Appointments Clause. See U.S. Merit Systems Protection Board Ratification
Order (Mar. 4, 2022), https://www.mspb.gov/foia/files/AJ_Ratification_Order
6 The holding in Lucia applied only to SEC administrative law judges and ther efore did
not directly address whether the Board’s method of appointing administrative judges
violated the Appointments Clause. For the reasons set forth herein, we need not resolve
that question here.
5
_3-4-2022.pdf .7 The Ratification Order is a public document , of which we take
administrative notice. Id.; see Azdell v. Offic e of Personnel Management ,
88 M.S.P.R. 319 , 323 (2001). That document is also now a part of the record
before the Board. 0041 IAF, Tab 23; 0576 RAF, Tab 10. Therefore, the decision
on the merits of th ese appeal s will be issued in the first instance by a properly
appointed official.
¶7 In order to avoid any additional Appointments Clause issues, we direct the
regional office to assign the appeal s to a properly appointed officia l other than
either the administrative judge who issued the first initial decision or the
administrative judge who certified the interlocutory appeal. See Lucia , 138 S. Ct
at 2055.8 Thus, the appellant has received all th e relief the Board can provide as
to his Appointments Clause claim and that issue is now moot. See Milner v. U.S.
Postal Service , 118 M.S.P.R. 600 , ¶ 4 (2012) (holding that a n issue is moot when
there is no effective relief that the Board can provide).
7 The Appointments Clause permits the appointment of inferior officers by the head of a
department; principal officers must be appointed by the President with the advice and
consent of the Senate. We see no basis to conclude that the Board’s administrative
judges are principal officers. See Freytag v. Comm issioner of Internal Revenue ,
501 U.S. 868 , 880 -82 (1991) (holding that special trial judges of the Tax Court, who
exercise significant discretio n in adjudicating matters before them, are inferior
officers). Thus, the appointment of administrative judges by the Board satisfies the
requirements of the Appointments Clause even if Board administrative judges are
officers, rather than mere employees.
8 Arguably, either of those administrative judges could properly adjudicate the appeal
now that they have received proper appointments. The Court in Lucia held that the
official who heard the case after remand could not be the same one who already heard
the case and issued an initial decision on the merits, even if he were to receive a proper
appointment, because “[h]e cannot be expected to consider the matter as though he had
not adjudicated it before.” Lucia , 138 S. Ct. at 2055. This logic would not ap ply to
either the administrative judge who certified the interlocutory appeal or the
administrative judge who dismissed the appellant’s first appeal without prejudice
because neither judge has expressed a view on the merits of the appeal. Nevertheless,
we find it appropriate to assign the appeal to a different administrative judge for further
adjudication in order to avoid any further claim under the Appointments Clause.
6
ORDER
¶8 Accordingly, we vac ate the stay orders issued in the se proceeding s and
return the appeal s to the regional office for further processing and adjudication
before a different administrative judge consistent with this Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | JOLLEY_WILLIAM_B_AT_4324_18_0576_I_2_ORDER_1912258.pdf | 2022-03-31 | null | S | NP |
4,502 | https://www.mspb.gov/decisions/nonprecedential/FLYNN_RORY_C_DC_1221_14_1124_M_4_ORDER_1912269.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RORY C. FLYNN,
Appellant,
v.
SECURITIES AND EXCHA NGE
COMMISSION,
Agency.
DOCKET NUMBER
DC-1221 -14-1124 -M-4
DATE: March 31, 2022
THIS ORDER IS NONPRECEDENTIAL1
Bruce M. Bettigole , Washington, D.C., for the appellant.
James V. Blair , and Laura Walker , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
ORDER
¶1 This appeal is before us on the administrative judge’s April 23, 2019 order
certifying for interlocutory review his order addressing the appellant’s claims
under the Appointments Clause and separation o f powers provisions of the
U.S. Constitution. We VACATE the administrative judge’s ruling and RETURN
1 A nonprecedential order is one tha t the Board has determined does not add
significantly to the body of MSPB case 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
this case to the regional office for furthe r adjudication before a different
administrative judge consistent with this decision.
BACKGROUND
¶2 The appellant first filed his individual right of action appeal with the Board
in September 2014 , after exhausting his administrative remedies with the Office
of Special Counsel. In his appeal, he alleged that the agency terminated him in
May 2013 , from his position as an Associate General Counsel in retaliation for
whistleblowing. Flynn v. Securiti es & Exchange Commission , MSPB Docket
No. DC-1221 -14-1124 -W-1, Appeal File ( W-1 AF), Tab 1. After the parties
engaged in extensive discovery over several months, the assigned administrative
judge held the appellant’s requested hearing over the course of 3 days in May and
July 2015. The administrative judge issued an initial decision denying the
appellant’s request for corrective action. W -1 AF, Tab 128, Initial Decision
(July 30, 2015 ). The appellant filed a petition for review of the initial decision,
but the two Board members could not agree on the disposition of the petition and
the initial decision therefore became the final decision of the Board. W -1 AF,
Tab 12, Order (Sept. 1, 2016).
¶3 The appellant then sought review of the Board’s final decision i n the
U.S. Court of Appeals for the Fourth Circuit. In December 2017, the
Fourth Circuit issued a decision remanding the case to the Board for further
consideration. The court agreed with the Board that the appellant’s disclosures
alleging violations of the agency’s Rule 900(a) were not protected, but it found
that the Board failed to fully consider whether the appellant made protected
disclosures alleging violations of Rule 900(b). Flynn v. Securities & Exchange
Commission , 877 F.3d 200 , 205 -08 (4th Cir. 2017). Rather than evaluating those
additional disclosures itself in the first instance, the court remanded the case to
the Board in order for the administrative judge to interpret the evidence after
further development of the record, if necessary.
3
¶4 In February 2018, after the case had returned to the Board, the appellant
moved to vacate the administrative judge’s prior decision based on violatio ns of
the Appointments Clause and separation of powers provisions of the
U.S. Constitution. Flynn v. Securities & Exchange Commission , MSPB Docket
No. DC -1221 -14-1124 -M-1, Appeal File (M-1 AF ), Tab 2. He noted that the
U.S. Supreme Court had granted cert iorari in January 2018 , in Lucia v. Securities
& Exchange Commission , 138 S. Ct. 736 (Jan. 12, 2018) , to address whether
administrative law judges (ALJs) of the Securities & Exchange Commission
(SEC) are Officers of the United States who must be appointed in accordance
with the Appointments Clause. The appellant argued that the Board’s
administrative judges, like SEC ALJs, are Officers of the United States whose
appointments were not made in accordance with the Appointments Clause.2 To
remedy the alleged Appointments Clause violation, the appellant asked that a
Board member adjudicate his appeal de novo.3 M-1 AF, Tab 2 at 5 -9. The
appellant also argued that the prior Board decision was void because the
administrative judge who decided his case was insulated from removal by
multiple layers of for -cause protection. Id. at 9-10.
¶5 The remanded appeal was assigned to the same administrative judge who
decided the initial appeal. In March 2018, he dismissed the appeal without
prejudice pending the Supreme Court’s decision in Lucia . M-1 AF, Tab 7, Initial
Decision (Mar. 12, 2018) . In June 2018, just after the Supreme Court decided
Lucia , the administrative judge dismissed the app eal a second time “to allow time
to further refine the issues and determine the proper scope of inquiry and action
2 Under the Appointments Clause, the President “shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint . . . Officers of the United States . . .
but the Congress may by Law vest the Appointment of such inf erior Officers, as they
think proper, in the President alone, in the Courts of Law, or in the Heads of
Departments.” U.S. Const. art. II, § 2, cl. 2.
3 Members of the Board are appointed by the President with the advice and consent of
the Senate, 5 U.S.C. § 1201 , and therefore there is no dispute as to the validity of their
appointment.
4
by the Board.” Flynn v. Securities & Exchange Commission , MSPB Docket
No. DC-1221 -14-1124 -M-2, Appeal File (M-2 AF ), Tab 3, I nitial Decision
(Jun e 29, 2018) . He dismissed the appeal without prejudice a third time in
October 2018. Flynn v. Securities & Exchange Commission , MSPB Docket
No. DC-1221 -14-1124 -M-3, Appeal File (M-3 AF ), Tab 2, I nitial Decision
(Oct. 2, 2018) . Later in October 2018 , the appeal was refiled and reassigned to a
new administrative judge. Flynn v. Securities & Exchange Commission , MSPB
Docket No. DC-1221 -14-1124 -M-4, Appeal File (M-4 AF ), Tab 2.
¶6 In response to the appellant’s c onstitutional arguments, the agency argued
in part that the appellant had waived those arguments by failing to raise them in
his initial appeal before the administrative judge or in his petition for rev iew to
the Board. M -2 AF, Tab 5; M -3 AF, T ab 5. In April 2019, the newly assigned
administrative judge issued an Order and Certification for Interlocutory Appeal
holding that (1) the appellant’s c onstitutional claims were properly before the
Board, (2) the Board’s administrative judges are Officers of the United States
whose appointment s did not comp ly with the Appointments Clause, and (3) the
Board lacks authority to add ress the appellant’s separation -of-powers argument
because doing so would require the Board to adjudicate the constitutionality of a
statute. M -4 AF, Tab 9. The admini strative judge stayed all further proceedings
pending the Board’s resolution of this interlocutory appeal.4
ANALYSIS
¶7 An administrative judge will certify a ruling for interlocutory review if the
ruling involves an important question of law or policy about which there is
substantial ground for difference of opinion and an immediate ruling will
4 While this matter was pending before the Board on interlocutory review, the appellant
filed several pleadings ci ting additional legal authority regarding the c onstitutional
claims raised in this appeal. M-4 AF, Tabs 12 -18. In reaching our decision in this
matter, we have considered the relevant legal authorities, including but not limited to
those cited in the appellant’s additional pleadings.
5
materially advance the completing of the proceeding, or the denial of an
immediate ruling will cause undue harm to a party or the public. Cooper v.
Department of the Navy , 98 M.S.P.R. 683 , ¶ 5 (2005) , review dismissed sub nom.
Weaver v. Department of the Navy , 197 F. App’x 936 (Fed. Cir. 2006) ; 5 C.F.R.
§ 1201.92 . In light of the lack of guidance regarding the impact of the Lucia
decision on the Board, we find that certification was proper.
The law of the case doctrine applies to those claims that were not the subject of
the remand.
¶8 As noted above, although the Fourth Circuit remanded this appeal to the
Board for further consideration of the appellant’s Rule 900(b) disclosures, the
court agreed with the Board that the appellant’ s Rule 900(a) disclosures were not
protected. Under the law of the case doctrine, a tribunal will not consider issues
that have already been decided in an appeal, unless there is new and material
evidence adduced at a subsequent trial, controlling authori ty has made a contrary
decision of law, or the prior decision was clearly erroneous and would work a
manifest injustice. Doe v. Department of Justice , 121 M.S.P.R. 596 , ¶ 7 (2014).
We find that the law of the case doctrine prevents relitigation of the appellant’s
claims arising out of his Rule 900(a) disclosures. Therefore, consistent with the
Fourth Circuit’s instructions, proceedings on remand are limited to the appellant’s
Rule 900(b) disclosures.
The appellant’s Appointments Clause claim is now moot.
¶9 In Lucia , the Supreme Court held th at SEC ALJs qualify as Officers of the
United States subject to the Appointments Clause , rather than as mere employees.
Lucia v. Securities & Exchange Commission , 138 S. Ct. 2044 , 2049, 2052 -55
(2018). Because SEC’s ALJs were appointed by SEC staff members rather than
the Commission itself, the Court held that the appointment of those ALJs violated
the Appointments Clause. Id. at 2050 -51. The Court further held that because
Lucia had made a timely challenge to the constitutional validity of the
appointment of the ALJ who adjudicated his case, he was entitled to relief in the
6
form of a new hearing before a different, properly appointed official. Id.
at 2055.5
¶10 The Court in Lucia did not specifically define what constitutes a timely
challenge to an appointment . Id. There is an issue as to the timeliness of the
Appointments Clause claim in this case. See McClenning v. Department of the
Army , 2022 MSPB 3, ¶¶ 5-15 (2022) (holding that , in order to be timely, an
Appointments Clause claim must be raised before the close of the record before
the administrative judge) . Here, the appellant fail ed to raise his Appointments
Clause claim before the administrative judge in his initial appeal, in his petition
for review to the Board , or in his appeal to the Fourth Circuit. It was only after
the Fourth Circuit had remanded the appeal to the Board for further adjudication
of certain claims that the appellant raised the Appointments Clause for the first
time. However, we find that we need not resolve the timeliness question because
the appellant’s Appointments Clause claim as to the claims remanded by the
Fourth Circuit is moot.
¶11 The Court in Lucia held that the remedy for an Appointments Clause
violation “is a new ‘ hearing before a properly appointed’ official. ” Lucia ,
138 S. Ct. at 2055 (quoting Ryder v. United States , 515 U.S. 177 , 182 -83 (1995)).
Here, all of the Board’s administrative judges have now received appointments
ratified by the head of the agency, thereby satisfying the requirements of the
Appointments Clause. See U.S. Merit Systems Protection Board Ratification
Order (Mar. 4, 2022), https://www.mspb.gov/foia/files/AJ_Ratification_
Order_3 -4-2022.pdf . The Ratification Order is a public document, of which we
take administrative notice. Id.; see Azdell v. Office of Personnel Management ,
88 M.S.P.R. 319 , 323 (2001). That document is also now a part of the record
5 The holding in Lucia applied only to SEC ALJs and therefore did not directly address
whether the Board’s method of appointing administrative judges violated the
Appointments Clause. For the reasons set forth herein, we need not resolve that
question here.
7
before the Board. M-4 AF, Tab 19. In order to avoid any additional
Appointments Clause issues, we direct the regional office to assign the appeal to
a properly appointed official other than either the administrative judge who issued
the first initial decision or the adminis trative judge who certified the interlocutory
appeal. See Lucia , 138 S. Ct. at 2055.6 Thus, the appellant has received all the
relief the Board can provide as to his Appointments Clause claim and that issue is
now moot. See Milner v. U.S. Postal Service , 118 M.S.P.R. 600 , ¶ 4 (2012)
(holding that a n issue is moot when there is no effective relief that the Board can
provide).
The B oard lacks authority to adjudicate the appellant’s separation of powers
claim.
¶12 We agree with the administrative judge that the Board is unable to
adjudicate the appellant’s argument that the removal protections provided by
statute to Board members and other Board officials, including administrative
judges, vio lates constitutional separation -of-powers principles. See Malone v.
Department of Justice , 14 M.S.P.R. 403 , 406 (1983) (declining to address the
constitutionality of a statute relating to veterans preference). An administrative
6 Arguably, either of those administrative judges could properly adjudicate the appeal
now that they have received proper appointments. The Court in Lucia held that the
official who heard the case after remand could no t be the same one who already heard
the case and issued an initial decision on the merits, even if he were to receive a proper
appointment, because “[h]e cannot be expected to consider the matter as though he had
not adjudicated it before.” Lucia , 138 S. Ct. at 2055. This logic would not apply to the
administrative judge who certified the interlocutory appeal as he has not expressed a
view on the merits of the appeal. The Court in Lucia further indicated that it was
especially important to have a differe nt ALJ adjudicate the case on remand whe n the
Appointments Clause issue was the only basis for remand and thus “the old judge would
have no reason to think he did anything wrong on the merits . . . and so could be
expected to reach all the same judgments.” Id. at 2055 n.5. Here, by contrast, even if
we returned the case to the administrative judge who issued the first initial decision, the
Fourth Circuit’s decision would preclude him from simply issuing the same decision a
second time. Nevertheless, we f ind it appropriate to assign the appeal to a different
administrative judge for further adjudication in order to avoid any further claim under
the Appointments Clause.
8
agency “has no authority to entertain a facial constitutional challenge to the
validity of a law.” Jones Brother s, Inc. v. Secretary of Labor , 898 F.3d 669 , 673
(6th Cir. 2018). “Each of the three branches of the [F]ederal [G]overnment . . .
has an indepen dent obligation to interpret the Constitution[,] [b]ut only the
Judiciary enjoys the power to invalidate statutes inconsistent with the
Constitution.” Id. at 674 (citing Marbury v. Madison , 5 U.S. (1 Cranch )
137 (1803)). Should the appellant choose to seek judicial review of the Board’s
final decision in this matter after remand, he would have an opportunity to
present his separation of powers argument at that time.
ORDER
¶13 Accordingly, we vacate the stay order issued in this proceeding and return
the appeal to the regional office for further processing and adjudication before a
different administrative judge consistent with this Order.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | FLYNN_RORY_C_DC_1221_14_1124_M_4_ORDER_1912269.pdf | 2022-03-31 | null | DC-1221 | NP |
4,503 | https://www.mspb.gov/decisions/nonprecedential/BARBOUR_JACQUELIN_CHARLENE_DC_1221_21_0517_W_1_FINAL_ORDER_1912335.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JACQUELIN CHARLENE B ARBOUR,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-1221 -21-0517 -W-1
DATE: March 31, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Edith Lee , Research Triangle Park , North Carolina, for the appellant.
Constance Kossally , Esquire, and Elise Harris , Atlanta, 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 dismissed her individual right of action (IRA) appeal for lack of
jurisdiction . Generally, we grant petitions such as this one only in the followin g
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any 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
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201. 115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial deci sion.
However, because the appellant has submitted evidence on petition for review
that she has now exhausted her administrative remedies before the Office of
Special Counsel (OSC), we FORWARD the matter to the regional office for
further adjudication .
¶2 The appellant filed this IRA appeal on July 6, 2021. Initial Appeal File
(IAF), Tab 1. She indicated in her appeal that she was challenging a letter of
reprimand dated a few days earlier on June 30, 2021. Id. at 4. She further
indicated tha t she had file d a whistleblower reprisal complaint with OSC on the
day the agency issued the letter of reprimand. Id. at 5.
¶3 The administrative judge issued an Order to Show Cause to the appellant on
the issue of exhaustion of her administrative remedies with OSC . IAF, Tab 3.
The administrative judge explained that the Board would only have jurisdiction
over the appellant’s IRA appea l if the appellant had filed a whistleblower reprisal
complaint with OSC and either OSC had notified her that it was terminating its
inves tigation or 120 calendar days had passed without a termination notice.
Id. at 2. She ordered the appellant to submit evidence and argument regarding the
exhaustion issue within 10 calendar days. Id. Having received no response from
the appellant after 14 days, the administrative judge issued an initial decision
3
dismissing the appeal for lack of jurisdiction based on a failure to prove
exhaustion. IAF, Tab 6, Initial Decision (ID).
¶4 The deadline fo r filing a petition for review of the initial decision was
August 27, 2021. ID at 3. The appellant filed a petition for review 18 days later
on September 14, 2021. Petition for Review (PFR) File, Tab 1. To explain her
filing delay, the appellant indica ted that she had just received a final
determination from OSC on September 9, 2021. Id. at 4. She s ubmitted copies of
emails between her and an attorney from OSC regarding her complaint.
Id. at 5-10. The agency did not respond to the appellant’s petiti on for review.
¶5 As the administrative judge correctly advised the appellant, an appellant
filing an IRA appeal has not exhausted her OSC remedy unless she has filed a
complaint with OSC and either OSC has notified her that it was terminating its
investigati on of her allegations or 120 calendar days have passed since she first
sought corrective action. 5 U.S.C. § 1214 (a)(3); Jundt v. Department of Veterans
Affairs , 113 M.S.P.R. 688, ¶ 6 (2010) . The appellant has shown no error in the
administrative judge’s determination that, as of the date of the initial decision,
she had not exhausted her remedies with OSC. We therefore deny the petition for
review. See Jundt , 113 M.S.P.R. 688, ¶¶ 5 -6.2
¶6 The Board’s practice is to adjudicate an appeal that was premature when it
was filed but becomes ripe while pending with the Board. Id., ¶ 7. It appears
from the documents submitted on petition for review that the appellant has now
exhausted her remedies with OSC regarding the June 30, 2021 letter of
reprimand.3 PFR File, Tab 1 at 10. We therefore forward the matter to the
regional office for further adjudication. See Jundt , 113 M.S.P.R. 688 , ¶ 7.
2 Because we are denying the appellant’s petition for review on the merits, we need not
address the apparent untimeliness of the petition.
3 The appellant filed a separate IRA appeal in 2019 regarding ot her personnel actions .
Barbour v. Department of Health & Human Services , MSPB Docket No. DC -1221 -20-
0234 -W-1. The matters raised in that appeal are not before the Board in this matter .
4
NOTICE OF APPEAL RIG HTS4
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for 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 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.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is 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 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
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.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 Federa l
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are i nterested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial revie w of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial re view of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Cou rt of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
Contact information for the courts of appeals can be found at their
respec tive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BARBOUR_JACQUELIN_CHARLENE_DC_1221_21_0517_W_1_FINAL_ORDER_1912335.pdf | 2022-03-31 | null | DC-1221 | NP |
4,504 | https://www.mspb.gov/decisions/nonprecedential/KING_BARBARA_R_DA_0752_09_0604_X_1_FINAL_ORDER_1911704.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BARBARA R. KING,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-0752 -09-0604 -X-1
DATE: March 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Barbara R. King , Fairfax, Virginia, 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 On April 15, 2016, the administrative judge issued a compliance initial
decision finding the agency noncompliant with its obligations under a prior Board
order. King v. Department of the Air Force , MSPB Docket No. DA -0752 -09-
0604 -B-3, Remand Compliance File, Tab 11, Remand Compliance Initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
Decision. After neither party filed a petition for review, the remand compliance
initial decision became the final decision of the Board, and the case was ref erred
to the Board for a final decision on issues of compliance. King v. Department of
the Air Force , MSPB Docket No. DA -0752 -09-0604 -X-1, Compliance Referral
File (CRF), Tab 1 at 2.
¶2 After referral of the appellant’s petition for enforcement to the Board, the
parties apparently entered into a verbal agreement resolving their disagreements.
CRF, Tab 3 at 3 -10. Subsequently, the appellant submitted a letter stating: “I
hereby withdraw the referenced compliance matter because the agency has fully
complied with the relief requested.” CRF, Tab 4 at 4. The agency’s
representative also signed the letter, stating that the agency had no objection to
the withdrawal of the petition for enforcement by the appellant. Id. at 4-5. Both
parties attested that they un derstood that the appellant’s withdrawal of the
compliance action was with prejudice to refiling. Id.
¶3 Finding that withdrawal is appropriate under these circumstances, we
dismiss the appellant’s petition for enforcement as withdrawn with prejudice to
refiling.
¶4 This is the final decision of the Merit Systems Protection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) ( 5 C.F.R. § 1201. 183(c)(1)).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
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 the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the 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 you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
represe ntative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discriminatio n based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EE OC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations 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 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
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petiti on 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 p etition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
6
review within 60 days of the date of issuance of this decisio n. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for 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.
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 | KING_BARBARA_R_DA_0752_09_0604_X_1_FINAL_ORDER_1911704.pdf | 2022-03-30 | null | DA-0752 | NP |
4,505 | https://www.mspb.gov/decisions/nonprecedential/MARRAZZO_TODD_S_AT_0752_16_0759_I_1_FINAL_ORDER_1911806.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TODD S. MARRAZZO,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
AT-0752 -16-0759 -I-1
DATE: March 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Todd S. Marrazzo , Delray Beach, Florida, pro se.
Andrew M. Greene , Atlanta, Georgia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the September 29, 2016 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal
File, Tab 11, Initial Decision . For the reasons set forth below, we DIS MISS the
petition for review as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite non precedential 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 ident ified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “S TIPULATON FOR COMPROMISE SETTLEMENT AND RELEASE
OF EMPLOYMENT DISCRIMINATION CLAIMS” signed and dated by the
appellant on November 30, 2016, and by the agency on December 1, 2016. PFR
File, Tab 4. The document provides, among other things, that the parties agreed
to settle the appellant’s pending “MSPB ” claims . Id. at 4. The parties
subsequently submitted a stipulation signed by both parties providing that they
agreed to dismissal as settl ed of the appellant’s pending petition for review and
that the settlement agreement would not be entered into the record for
enforcement by the Board. PFR File, Tab 5. Shortly thereafter, the parties
submitted a clarifying stipulation signed by both part ies providing that they
agreed to dismissal of the appellant’s pending petition for review as settled and
that the settlement agreement be entered into the record for enforcement by the
Board. PFR File, Tab 6.
¶3 Before dismissing a matter as settled, the Bo ard must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 4 . In addition, we find that the
3
agreement is lawful on its face and that the p arties freely entered into it. Id.
Accordingly, we find that dismissal of the appellant’s petition for review “with
prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances, and we accept the settlement agreement
into the record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protecti on Board in this
appeal. Title 5 of the Code of Federal Regulation, 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
prom ptly 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 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
2 Since the issuance of the initial decision in this matter, the Board may have upd ated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
4
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law 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 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
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 disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations with in 30 calendar days after you receive
this decision. 5 U.S.C. § 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 Opportun ity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
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 peti tion to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s websi te, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representati on for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 thro ugh the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MARRAZZO_TODD_S_AT_0752_16_0759_I_1_FINAL_ORDER_1911806.pdf | 2022-03-30 | null | AT-0752 | NP |
4,506 | https://www.mspb.gov/decisions/nonprecedential/ORFANEL_MATTEO_AT_0752_16_0821_I_1_FINAL_ORDER_1911854.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MATTEO ORFANEL,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -16-0821 -I-1
DATE: March 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matteo Orfanel , Orlando, Florida, pro se.
Jonathan Tabacoff , 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 November 14, 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
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
File, Tab 9, Initial Decision . For the reasons set forth below, we DISMISS the
appeal as settled.2
¶2 After the filing of the petition for review, the p arties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the agency on
May 29, 2018, and by the appellant on June 1, 2018. PFR File, Tab 7 at 8. The
document provides, among other things, that the appellant agreed to withdraw the
above -captioned appeal in exchange for the promises made by the agency . Id.
at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 7 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
2 Two other cases previously pending on petition for review, MSPB Docket Nos. AT -
3443 -17-0611 -I-1 and AT -0752 -17-0495 -I-1, were dismissed as settled pursuant to the
same settlement agreement in Board decisions dated March 18 and March 21, 2022,
respectively. Additionally, the administrative judge dismissed two other cases, MSPB
Docket Nos. AT -0752 -18-0131 -I-1 and AT -1221 -17-0751 -W-1, pursuant to the same
settlement agreement in initial decisions date d June 5, 2018.
3
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.
¶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
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 ma tter.
4
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 da ys
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1) . You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, th e
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices 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
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 201 8, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The Al l Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se 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.
Contact information for the courts of appeals can be 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 | ORFANEL_MATTEO_AT_0752_16_0821_I_1_FINAL_ORDER_1911854.pdf | 2022-03-30 | null | AT-0752 | NP |
4,507 | https://www.mspb.gov/decisions/nonprecedential/ROSSBACH_RANDALL_GLENN_DC_315I_14_0066_B_1_FINAL_ORDER_1911891.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RANDALL GLENN ROSSBA CH,
Appellant,
v.
DEPARTMENT OF THE IN TERIOR,
Agency.
DOCKET NUMBER
DC-315I -14-0066 -B-1
DATE: March 30, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
James Nicklas Holt, Jr ., Knoxville, Tennessee, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The ag ency has filed a petition for review of the remand initial decision,
which denied the appellant’s request for corrective action under the Veterans
Employment O pportunities Act of 1998 (VEOA ) and reversed his termination on
the grounds that the agency failed to effect the action prior to the end of his
probationary period and failed to provide him the minimum due process owed 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 d ecisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.1 17(c).
2
tenured Federal employee. 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 j udge’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 a rgument 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. § 1201.1 15). 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 initia l
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 Effective August 26, 2012, the agency appointed the appellant to a
Maintenance Worker Supervis or position in the competitive service at Great
Smoky Mountains National Park in North Carolina. Rossbach v. Department of
the Interior , MSPB Docket No. DC -315I -14-0066 -I-1, Initial Appe al File (IAF),
Tab 4 at 7, 15 . His appointment was subject to a 1 ‑year probationary period and
required him to possess or obtain a North Caro lina Water Operators License
(C-Well) within 1 year. IAF, Tab 37 at 28.
¶3 On Thursday, August 22, 2013, the appellant emailed his supervisor
requesting leave without pay (LWOP) under E xecutive Order (EO) 5396 due to a
medical emergency. IAF, Tab 18 at 8 . The next day, o n August 23, 2013, the
agency mailed a notice to the appellant’s out -of-state address informing him that,
effective that day, he was being terminated during his probationary period due to
his failure to obtain a C -Well license within 1 year of his appointment. IAF,
3
Tab 4 at 7-8. The notice informed the appellant that his probationary period
expired on August 25, 2013, and that, as a probationary employee, his ap peal
rights were limited. Id. at 7. On Saturday, August 24 and Sunday, August 25,
2013, the appellant sent text messages to his supervisor stating that he would be
getting a heart catheterization on Monday and reiterating his request for leave
under EO 5 396. IAF, Tab 18 at 9-10. Although the appellant’s text messages did
not meet the requirements for requesting leave under EO 5396, the agency
granted him sick leave for August 23 and 24, 2013. IAF, Tab 37 at 25. On
Monday, August 26, 2013, the Deputy C hief left a voicemail on the appellant’ s
agency‑issued cell phone informing him that his termina tion would be processed
by 4 :00 p.m. that day unless he opted to resign within the next 30 minutes. IAF,
Tab 36 at 5.
¶4 On September 20, 2013, the appellant subm itted a claim to the Department
of Labor (DOL) alleging that the agency had violated his veterans ’ preference
rights when it terminated him the day after he requested LWOP under EO 5396.
IAF, Tab 4 at 17 -20. After DOL notified the appellant that it would not
investigate his claim, he filed a Board appeal challenging his probationary
termination and alleging that the agency violated his veterans’ preference rights .
IAF, Tab 1. Without holding the appellant’s requested hearing, the administrative
judge dismissed the appeal for lack o f jurisdiction, finding that the agency
terminated the appellant during his probationary period for conduct that occurred
after his appointment and that he did not allege that his termination was based on
partisan political r easons or marital status discrimination. IAF, Tab 42, Initial
Decision (ID) at 3-7. The administrative judge found Board jurisdiction over the
appellant’s VEOA claim but determined that he failed to show that the agency
violated one or more of his statut ory or regulatory vet erans’ preference rights. ID
at 7-11. Thus, the administra tive judge denied the appellant’ s request for
corrective action under VEOA. ID at 12.
4
¶5 On petition for review of the initial decision , the Board found that it was
unclear from the record when the appellant’s probationary period ended and when
he received notice of his termination and that it did not appear that he received
notice of his termination before its effective date. Rossbach v. Department of the
Interior , MSPB Docket No. DC-315I -14-0066 -I-1, Remand Order , ¶ 15 (Feb. 17,
2016). Thus, the Board concluded that t he appellant made a nonfrivolous
allegation that the agency failed to provide him notice of his termination before
the end of his tour of duty on the last day of his probationary period and that he
was entitled to a jurisdictional hearing . Id., ¶¶ 10-15, 19. The Board also found
that the administrative judge erred in deciding the appellant’s VEOA claim
without holdin g his requested hearing . Id., ¶ 20. Accordingly, the Board
remanded the appeal to the regional office for further adjudication. Id., ¶ 22.
¶6 On remand, the administrative judge held a hearing and issued a remand
initial decision finding that the appellant’s prob ationary period ended on
August 25, 2013, at 3:30 p.m., and that he was not notified of his termination
until after 7 :00 p.m. on that day. Rossbach v. Department of the Interior , MSPB
Docket No. DC -315I -14-0066 -B-1, Remand File ( RF), Tab 21, R emand Initial
Decision (RID) at 10‑11. She further found that the agency failed to take
reasonable efforts to notify the appellant of his termination prior to its effective
date. Id. Thus, she concluded that the agency failed to terminate the appellant
prior to his completing the probationary pe riod and that, because he was denied
the minimum due process owed a tenured Federal employee, his termination must
be reversed. RID at 11‑12. The administrative judge found that the appellant
established jurisdiction over his VEOA claim but that he faile d to show by
preponderant evidence that the agency violated one or more of his statutory or
regulatory veterans’ preference rights . RID at 12 -16. Therefore, she denied his
request for corrective action under VEOA. RID at 16.
5
¶7 The agency has filed a petit ion for review of the remand initial decision, the
appellant has responded in opposition, and the agency has replied to the agency’s
response. Rossbach v. Department of the Interior , MSPB Docket No. DC-315I -
14-0066 -B-1, Remand Petition for Review (RPFR) File, Tabs 1, 3 -4.2
DISCUSSION OF ARGUME NTS ON REVIEW
The administrative judge correctly found that the appellant did not receive actual
or constructive notice of his termination prior to the completion of his
probationary period .
¶8 To terminate a probationary employee in the competitive service for
conduct occurring after his appointment, the agency must notify him “in writing
as to why he is being separated and the effective date of the action.” 5 C.F.R.
§ 315.804 (a). The Board has held that “the plain meaning of the regulatory
language indicates that the employee is not terminated until he receives such
notice since it is only ‘by notifying him in writing ’ that t ermination of the
employee ’s services is accomplished.” Lavelle v. Department of Transportation ,
17 M.S.P.R. 8 , 15 (1983) (quoting 5 C.F.R. § 315.804 ), modified on other
grounds by Stephen v. Department of the Air Force , 47 M.S.P.R. 672 (1991).3 An
employee need not receive actual delivery of the agency’s notice before the
effective date of the termination so long as the agency’s attempts to notify him
were diligent and reasonable under the circumstances . Id. If the agency made
diligent and reasonable attempts to effect service of the notice prior to the
effective date of the action, then the Board will find that the employee received
2 On review, the parties do not challenge the administrative judge’s decision denying
the appellant’s request for corrective action on the merits of his VEOA appeal, RPFR
File, Tabs 1, 3 -4, and we find no basis to disturb this finding, see Crosby v. U.S. Postal
Servic e, 74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb the administrative
judge’s findings when she c onsidered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions on issues of credibility).
3 Although Lavelle quotes a previous version of 5 C.F.R. § 315.804 , the current version
of the regulation contains the identical language regarding providing employees written
notice of their termination.
6
constructive delivery of the notice. Id. If an employee does not receive actual or
constructive delivery of written notice of his termination until after the effective
date of the action, the action is not effective until actual receipt of the notice by
the employee. Id. at 16.
¶9 As noted above, the administrative judge found in the remand initial
decision that the appellant’s probationary period en ded on August 25, 2013,
at 3:30 p.m. and that the agency did not notify him of his termination , verbally or
in writing, prior to that date and time . RID at 10. On review, the parties do not
challenge the administrative judge’s finding s that the appellant’s probationary
period ended at 3:30 p.m. on August 25, 2013, and that he did not receive written
notice before that date and time. RPFR File, Tabs 1, 4. We agree that the record
supports these findings and discern no basis to disturb them . See Crosby v. U.S.
Postal Servic e, 74 M.S.P.R. 98 , 105‑06 (1997 ).
¶10 The agency argues, however, that the administrative judge erred in finding
that the appellant did not receive verbal notice prior to the end of his probationary
period because he conceded in his September 20, 2013 submission to DOL that he
received a voicemail from the Deputy Chief on August 23, 2013, notifying him of
his termination . RPFR File, Tab 1 at 6, 9 ‑11, Tab 4 at 5‑8; RF, Tab 8 at 38. The
appellant responds that he mere ly misstated the date of the voicemail in his DOL
submission , that he was unable to verify the date because the agency turned off
his agency cell phone after his termination, and that he was “heavily medicated
and sedated while in the hospital,” which led to his misstatement regarding the
date of the voicemail . RPFR File, Tab 3 at 14. The appellant further argues that
the record and hearing testimony confirm that the Deputy Chief did not leave a
voicemail on his agency cell phone on August 23, 2013. Id. at 14-15.
¶11 As correctly noted by the appellant , the Deputy Chief testified at the
hearing that he did not call the appellant on his agency cell phone on
August 23 or 24, 2013 , and that he did not speak to him abou t his termination
7
until after 7 :00 p.m. on Sunday, August 25, 2013 . RF, Ta b 20, Hearing Compact
Disc ( HCD) (testimony of the Deputy Chief). In addition, t he agency -produced
transcripts of voicemails found on the appellant’s agency cell phone reflect that
the Deputy Chief left two voicemails for the appellant on August 26, 2013, but
did not leave any messages for him on August 23, 2013. RF, Tab 10 at 37 -38.
The transcript of the 3:27 p.m. voicemail from August 26, 2013, reflects that he
informed the appellant that the agency would process his termination at 4 :00 p.m.
that day if he did not call to resign w ithin the next 30 minutes. Id. at 38.
¶12 The Board must defer to an administrative judge’ s credibility
determinations when they are based, explicit ly or implicitly, on observ ing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so.
Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) . Here, the
administrative judge found that the Deputy Chief’s hearing testimony was
credible , RID at 10, and the agency has not alleged that there are any reasons to
overturn this credibility determination , RPFR File, Tabs 1, 4. The agency argues ,
however, that the Deputy Chief “merely responded in the negative to the question
of whether he called the Appellant on Friday, August 23, 2013,” and that this
“statement is ambiguous as to whether a voice mail message was record ed.”
RPFR File, Tab 4 at 7 -8. We find this contention unavailing. T he Deputy Chief
clearly testified that he did not call the appellant on A ugust 23 or 24 , 2013 , and
his testimony provides no support for the agency’s claim that he may have left a
voicemail for the appellant on August 23, 2013, despite the fact that he did not
“call” him that day . HCD (testimony of the Deputy Chief). Therefore, we
conclude that the appellant did not receive a voicemail from the Deputy Chief on
August 23, 2013, informing him of his termination. We further discern no basis
to disturb the administrative judge’s determination that the agency did not infor m
the appellant of his termination at any time prior to his completing the
probationary period on Sunday, August 25, 2013, at 3:30 p.m.
8
¶13 Nonetheless, a s noted above, an employee will be deemed to have received
constructive notice of his termination if the a gency made diligent and reasonable
attempts under the circumstances to effect service of the notice prior to the
effective date of the action. Lavelle , 17 M.S.P.R. at 15 -16. Here , the
administrative judge found that the agency’s efforts to effect prior s ervice on the
appellant were insufficient. RID at 10 -11. In so finding , she noted that the
agency mailed the termination notice to the appellant’s residence in Michigan via
first‑class mail and certified mail on Friday, August 23, 2013 , but did not attempt
to send the letter by Federal Express to ensure delivery before the end of his
probationary period . RID at 10. She further noted that the appellant’s
agency -issued cell phone was not disconnected until August 27, 2013, but that
the agency did no t attempt to text him to inform him that he was being
terminated. Id. In addition, the administrative judge noted that the agency could
have called or texted the appellant on his agency -issued cell phone or tried to
contact the 10 local hospitals to determine his location to serve him with the
termination letter in person. RID at 10-11.
¶14 On review, t he agency argues that the administrative judge erred in finding
that it did not make a reasonable and diligent effort to inform the appellant of his
terminati on in writing prior to the end of his probationary period when , on
August 24, 2013, the Chief Deputy and the appellant’s first -level supervisor
attempted to personally deliver the termination notice to him at his duty station .
RPFR File, Tab 1 at 16‑17, T ab 4 at 8-12. The agency further argues that the
administrative judge failed to consider relevant case law that supports a finding
that the appellant received constructive notice in this case. RPFR File, Tab 1
at 11‑15, Tab 4 at 8 -11. For the reasons th at follow, we find that these arguments
provide no basis to disturb the initial decision.
¶15 In the first case cited by the agency, the U.S. Court of Claims found that the
agency constructively notified a probationary employee of his January 2, 1972
9
termination when, after he unexpectedly did not report to work on Dece mber 30,
1971 , it sent copies of the notice to his home address by mail and messenger and,
upon learning the next day that he was in the hospital, sent a telegram with the
contents of th e notice to the hospital, which the employee’s wife refused to
accept. Shaw v. United States , 622 F.2d 520 , 523, 5 28 (Cl. Ct. 1980). The court
also found probative the fact that the employee was verbally notified of his
“imminent termination” on December 29, 1971, and that “[h]e had every reason to
expect a notice would soon be delivered to him, yet curiously enough, he received
none of the many notices sent until the day after his discharge from the hospital. ”
Id. at 528.
¶16 In the second case cited by the agency, the Board found that the agency
constructively notified a probationary employee of her termination when, while
she was out on sick lea ve, it sent a messenger to personally serve her with the
termination notice and, upon finding that she was not home, the messenger taped
the termination notice on her door . Cephas v. Department of the Treasury ,
27 M.S.P.R. 69 , 72 , aff’d , 785 F.2d 321 (Fed. Cir. 1985) (Table ). The Board
explained that sending a messenger to personally deliver the notice to the
employee’s home when her whereabouts w ere unknown was indicative of due
diligence by the agency. Id.
¶17 We find that Shaw and Cephas are distinguishable from the inst ant case.4
As noted above, the agenc y mailed the termination notice to the a ppellant’s
residence in Michigan by certified and first -class mail on Friday, August 23,
2013 —the purported effective date of the termination . RF, Tab 8 at 34; HCD
4 The third case, cited by the agency as Bartholomew v. United States , 1983 U.S. Dist.
LEXIS 17367 (N.D. Ill. 1983), appears to be an unpublished Federal district court case.
RPFR File, Tab 1 at 14, Tab 4 at 11. The agency did not provide a copy of this
decision, and we are unable to locate it. In any event, we need not consider
Bartholomew because district court deci sions are not binding on the Board, and
unpublished opinions are of no precedential value. Ruiz v. U.S. Postal Service ,
59 M.S.P.R. 76 , 79 (1993).
10
(testimony of the Deputy Chief). On th e morning of Saturday, August 24, 2013 —
the day after the stated effective date of the termination —the Deputy Chief and
the appellant’ s first‑level supervisor attempted to deliver the termination notice
to him at his duty station but were unable to do so because he did not report to
work that morning . HCD ( testimony of the Deputy Chief). According to the
Deputy Chief, once they realized the appellant was not going to report to work
that day, the appellant’s first -level supervisor attempted to call him at his home
and on his cell phone but was unable to reac h him or to determine to which
hospital he had been admitted. Id. The Deputy Chief also testified that the
agency took no further steps to effect timely service of the written termination
notice on the appellant. Id.
¶18 Unlike the agencies involved in both the Cephas and Shaw cases , the
agency here did not attempt to use a messenger or any delivery service that was
reasonably like ly to deliver notice to the appellant’s home address before the
effective date of the action or before the end of his probationary period. R ather,
as noted above, the agency sent the termination notice to the appellant’s residence
in Michigan by first‑class and certified mail on the effective date of the action,
Friday, August 23, 2013. RF, Tab 8 at 34 ; HCD (testimony of the Deputy Chief) .
The Board has specifically held that mailing a termination notice to an employee
by certified mail on the effective date of the action was “completely inadequate to
ensure prior service.” Lavelle , 17 M.S.P.R. at 15. Unsu rprisingly, the
termination notice was not delivered to the appellant’s out -of-state residence on
the same day it was mailed, and a tracking report submitted by the agency reflects
that the Postal Service first attempt ed to deliver the certified letter on August 27,
2013 . RF, Tab 8 at 33 -34, 65. Thus, even if the appellant had been at his
residence, rather than in the hospital, he would not have received the mailed
termination notice before its effective date on August 23, 2013, or before the end
of his p robationary period on August 25, 2013 .
11
¶19 Unlike the agency in Shaw , the agency here did not make reasonable efforts
to effect timely service on the appellant in the hospital upon learning that he
would not be reporting to work . Although the agency contends that it did not
know to which hospital the appellant had been admitted, we agree with the
administrative judge’s finding that the agency failed to make reasonable efforts to
determine that information by, for example, calling o r texting the appellant on his
agency -issued cell phone, which he had been using to text his supervisor, or by
trying to contact the 10 local hospitals to find out if the appellant had been
admitted there . RID at 10‑11. In addition, unlike the employee i n Shaw , who did
not request leave or notify his employing agency that he was being admitted to
the hospital, the appellant here notified his first ‑level supervisor on Thursday,
August 22, 2013, that he had to go to the emergency room and sent text messages
to him on Saturda y, August 24 and Sunday, August 25, 2013, stating that he
would be getting a heart catheterization on the following Monday. RF, Tab 8
at 9-10, 16 -17, Tab 10 at 26.
¶20 Similarly , unlike the employee in Shaw , the appellant here had no reaso n to
expect that his termination was imminent because, as discussed above, he did not
receive verbal notice of his termination prior to the end of his probationary
period. Moreover, the record reflects that on August 20, 2013, the agency
authorized his travel to retake the C‑Well certification examination on August 29,
2013. RF, Tab 10 at 66‑71.
¶21 In light of the foregoing, we find that the agency failed to take diligent and
reasonable efforts under the circumstances to constitute timely constructive
notice . Accordingly, we find no basis to disturb the administrative judge’s
determination that the agency failed to effect the appellant’s termination before
the end of his probationary period , and we agree that the appellant’s termination
must be reversed . RID at 12.
12
We reject the agenc y’s argument that the appellant’s improper termination appeal
should be dismissed as untimely filed .
¶22 The agency argues on review that the appellant first alleged that his
probationary termination was improper in February 2015, more than 30 days after
the effective date of his August 23, 2013 termination , or his receipt of the
termination notice, and that this appeal should be dismissed as untimely filed.
RPFR File, Tab 1 at 6‑7.
¶23 It is well settled that the issue of the Board’s jurisdiction is always before
the Board and may be raised by either party or by the Board sua sponte at any
time during a Board proceeding. Stoglin v. Department of the Air Force ,
123 M.S.P.R. 163 , ¶ 7 (2015) , aff’d , 640 F. App’x 864 (Fed. Cir. 2016) . The
issue of whether the appellant was a probationary emplo yee is
quasi -jurisdictional in that it determines the scope of the Board’s authority to
review the appeal. Stephen , 47 M.S.P.R. at 678. Therefore, the fact that long
after the appellant initially filed his appeal in October 2013, he alleged for the
first time in February 2015 that the agency failed to effect his termination during
his probationary period provides no basis to dismiss this claim as untimely filed.
Id.; IAF, Tab 36 .
The administrative judge correctly rejected the agency’s addendum termina tion
notice from the record.
¶24 The agency lastly argues that the administrative judge erroneously excluded
new evidence from the proceedings below. RPFR File, Tab 1 at 7-9, Tab 4 at 4-5.
Specifically, the agency challenges the administrative judge’s decision to grant
the appellant’s motion in limine to preclude the agency from introducing evidence
or testimony related to a July 20, 2016 “Addendum to Notice of Termination
During Probationary Period ,” which set forth allegedly “newly discovered
informat ion” in support of the appellant’s termination . Id.; RF, Tab 6, Tab 15 at
8.
13
¶25 An administrative judge has broad discretion to regulate the course of the
hearing and to exclude evidence that has not been shown to be relevant or
material to the case at hand . Thomas v. U.S. Postal Service , 116 M.S.P.R. 453 ,
¶ 4 (2011); 5 C.F.R. § 1201.41 (b)(8), (10). Here, as the administrative judge
correctly determined, the agency’s addendum does not contain information
relevant to the issues in this appeal . RF, Tab 15 at 8. Therefore, w e find that she
properl y granted the appellant’s m otion to exclude the addendum.
ORDER
¶26 We ORDER the agency to cancel the removal and to restore the appellant
effective August 23, 2013. See Kerr v. National Endowment for the Arts ,
726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later
than 20 days after the date of this decision.
¶27 We also ORDER the agency to pay the appellant the correct amount of b ack
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 calculat e 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 th e agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶28 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 t he 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).
¶29 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
14
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).
¶30 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accou nting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to proces s payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 ‑day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUES T
ATTORNEY FEES AND CO STS
You 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 foun d at 5 C.F.R. §§ 1201.201 , 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIG HTS5
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
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.
15
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Althoug h we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts w ill rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to fil e within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
abou t whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petit ion for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
16
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed 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 la wyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locat or/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
17
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative i n this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEO C via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
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.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
18
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained 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.
July 7, 2 018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
19
Contact information for the 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
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missin g documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non -wage payments (such as d amages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remed y Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job under taken during the back pay period to replace federal employment.
Documentation includes W -2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuit y payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave 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 r equired by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by the Merit
Systems Protection Board, EEOC, and courts .
1. Initiate and submit AD -343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD -343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be collected
(if applicable).
Attachments to AD -343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide 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. | ROSSBACH_RANDALL_GLENN_DC_315I_14_0066_B_1_FINAL_ORDER_1911891.pdf | 2022-03-30 | null | DC-315I | NP |
4,508 | https://www.mspb.gov/decisions/nonprecedential/QUINN_STANLEY_SF_0752_21_0097_I_1_FINAL_ORDER_1911344.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STANLEY QUINN,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
SF-0752 -21-0097 -I-1
DATE: March 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
John T. Harrington , Esquire, Washington, D.C., for the appellant.
Matt Hughes , Esquire, and Simon Caine , Esquire, Joint Base Andrews,
Maryland, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Mem ber
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the agency’s chapter 75 removal of the appellant from his position as a
GS-12 Sexual Assault Prevention and Response Program Manager based on the
following charges: (1) failure to meet a condition of employment; (2) conduct
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
unbecoming a Federal employee supervisor; (3) failure to follow procedures; and
(4) negligent performance of duties. 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).
We discern no basis to disturb the administrative judge’s conclusion that the
agency proved charge 2, i.e., conduct unbecoming a Federal employee supervisor.
¶2 The appellant argue s that the agency failed to prove its second charge, i.e.,
conduct unbecoming a Federal employee supervisor.2 Petition for Review (PFR)
File, Tab 1 at 15 -23. To this end, he contends that the administrative judge failed
to sufficiently explain either the legal standard applicable to the charge or why
2 Charge 1, i.e., failure to meet a condition of employment, stemmed from the
revocation of the appellant’s Defense Sexual Assault Advocate Certification Program
certification. Initial Appeal File (IAF), Tab 5 at 35, Tab 6 at 22 -24. The revocation of
the appellant’s certification was premised in part on the conduct underlying
charges 2‑4, i.e., conduct unbecoming a Federal employee supervisor, failure to follow
procedures, and negligent performance of duties; accordingly, the appellant’s
challenges to the administrative judge’s conclusions regarding charge 2 necessarily
implicate charge 1. IAF, Tab 5 at 35 -36, Tab 6 at 22-24.
3
the appellant’s conduct satisfied the subject standard.3 Id. at 16 -17. He also
avers that the administrative judge made er roneous and/or insufficient credibility
determinations insofar as one of the witnesses provided conflicting versions of
the events underlying the charge whereas his version of events remained
consistent . Id. at 17 -23. We find these assertions unavailing.
¶3 A charge of “conduct unbecoming” has no specific elements of proof; it is
established by proving that the employee committed the acts alleged in support of
the broad label. Canada v. Department of Homeland Security , 113 M.S.P.R. 509 ,
¶ 9 (2010); see Miles v. Department of the Army , 55 M.S.P.R. 633 , 637 (1992)
(explaining that, to sustain a charge of conduct unbecoming a Federal employee,
the agency must demonstrate that the conduct in question was unattractive,
unsuitable, or detract ed from the employee’s character). Contrary to the
appellant’s assertions , the administrative judge set forth this legal standard in his
initial decision, Initial Appeal File (IAF), Tab 38, Initial Decision (ID) at 11, and
provided a thorough analysis to support his conclusion that the agency had proved
all four of the specifications underlying the charge, ID at 11‑22; see Haebe v.
Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002) (holding that the
Board must give deference to an administrative judge’s credibility determinations
when they are based, explicitly or implicitly, on the observation of the demeanor
of witnesses testifying at a hearing); see also Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98 , 105 -06 (1997) (finding no reason to disturb the administrative
judge’s findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
& Human Services , 33 M.S.P.R. 357 , 359 (1987) (same). Moreover, the bulk of
the appellant’s arguments regarding this charge pertain to the first of the four
3 The appellant also argues that, in analyzing this charge, “[m]itigati ng factors such as
[the appellant ’s] long reputation for good character and performance should have been
discussed.” PFR File, Tab 1 at 17. The administrative judge, however, specifically
considered “the appellant ’s character references and strong perfor mance background” in
assessing witness credibility. ID at 18.
4
specification s underlyi ng the charge, i.e., that, while in his work area and in the
presence of two subordinates, the appellant described a hypothetical scenario in
which he was engaging in oral sex with one of his subordinates. PFR File, Tab 1
at 15 -21; IAF, Tab 5 at 35. As s et forth in the initial decision, the appellant
admitted to the conduct underlying the specification as set forth in the agency’s
notice of proposed removal ; thus, credibility determinations were not relevant to
this specification . ID at 12 -13; IAF, Tab 5 at 35. The administrative judge
considered the appellant’s contention that he had intended the hypothetical to
present a learning opportunity, but nonetheless found that the appellant’s conduct
was improper, unsuitable, and/or detracted from the appellan t’s character or
reputation. ID at 13. We agree that a supervisor describing engaging in oral sex
with a subordinate in front of both the named subordinate and another
subordinate , particularly a supervisor holding the position of Sexual Assault
Preventi on and Response Program Manager, reflects poor judgment and is
improper regardless of the appellant’s purported justification for doing so. See
Edwards v. U.S. Postal Service , 116 M.S.P.R. 173 , ¶ 14 (2010) (stating that
agencies are entitled to hold supervisors to a higher standard than nonsupervisors
because they occupy positions of trust and responsibility ). This specification
alone is sufficient to sustain the charge. See Burroughs v. Department of the
Army , 918 F.2d 170 , 172 (Fed. Cir. 1990) (expla ining that, whe n more than one
specification supports a single charge, proof of one or more of the supporting
specifications is sufficient to sustain the charge). Thus, the appellant’s assertions
do not warrant a different outcome .
We discern no basis t o disturb the administrative judge’s conclusion that the
appellant failed to prove his affirmative defense of discrimination on the basis of
his sex.
¶4 The appellant contends that the administrative judge erred in finding that he
failed to prov e his affirmat ive defense of discrimination on the basis of his sex .
PFR File, Tab 1 at 23-26. To this end, he avers that the allegations against him
5
“did not add up” and, therefore, the allegations were “merely pretext for
discrimination against him based on his gend er.” Id. at 23 -25. The appellant also
assert s that he is aware of “multiple male managers who [have been] similarly
removed because of similar allegations of harassment ,” some of whom were
allegedly removed as the result of claims made by one of the witnesses who
testified against the appellant . Id. at 25 . We find these assertions unavailing.
¶5 Here , the administrative judge properly explained that it was the appellant’s
burden to prove by preponder ant evidence that the prohibited consideration , i.e.,
his sex, was a motivating factor in h is removal and, if he did, the agency would
be required to prove by preponderant evidence that it would have taken the same
action in the absence of the prohibited c onsideration . ID at 26-28 (citing, e.g.,
Savage v. Department of the Army , 122 M.S.P.R. 612 (2015)). The administrative
judge th oroughly considered the appellant’ s claims but concluded that he had
presented no evidence to substantiate his assertion that the agency’s action was
motivated by his sex.4 ID at 30. To this end, he explained that the appellant had
introduced “little spe cific information” about any other supervisory employees
who had allegedly been disciplined for similar conduct and that, even assuming
other male supervisors had been disciplined for such conduct , it was unclear how
such evidence would show that the agenc y unlawfully removed the appellant due
to his sex. ID at 29. We discern no basis to disturb this conclusion.
We discern no basis to disturb the administrative judge’s conclusion that the
penalty of removal was reasonable under the circumstances.
¶6 Last, the appellant argues that the penalty of removal was unreasonable
under the circumstances . PFR File, Tab 1 at 26-27. To this end, he reasserts that
the agency failed to prove the first two charges and, therefore, that he is “only
4 Because we discern no error with the administrative judge’s motivating factor analysis
or conclusion regarding the appellant’s discrimination claim, we do not reach the
question of whether hi s sex was a “but for” cause of the removal action. See Babb v.
Wilkie , 589 U.S. ___, 140 S. Ct. 1168 , 1177 -78 (2020).
6
responsible for [c]harg es 3 and 4 ,” i.e., failure to follow procedures and negligent
performance of duties.5 Id. He also aver s that he has no prior disciplinary record,
exemplary performance reviews, good character references, potential for
rehabilitation, and that he has ackn owledged his mistakes regarding the latter two
charges. Id. at 27.
¶7 When, as here, the agency’s charges are sustained, the Board will review an
agency imposed penalty only to determine if the agency considered all of the
relevant factors and exercised discretion within tolerable limits of reasonableness.
Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 11 (2010); Douglas v.
Vetera ns Administration , 5 M.S.P.R. 280 , 305 -06 (1981). In making this
determination, the Board must give due weight to the agency’s primar y discretion
in maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility, but to ensure that
managerial judgment has been properly exercised. Ellis , 114 M.S.P.R. 407 , ¶ 11;
Douglas , 5 M.S.P.R. at 306. The Board will modify an agency -imposed penalty
only when it finds that the agency failed to weigh the relevant factors or the
penalty clearly exceeds the bounds of reasonableness. Ellis , 114 M.S.P.R. 407 ,
¶ 11.
¶8 Here, the administrative judge applied the proper legal standard and
concluded that the agency’s selected penalty of removal was not unwarranted
under the circumstances and was within the tolerable bounds of reasonableness.
ID at 31 -33; see Ellis , 114 M.S.P.R. 407 , ¶ 11. To this end, he reasoned that the
deciding official had credibly testified regarding his careful consideration of the
Douglas factors. ID at 31-32; see Haebe , 288 F.3d at 1301 ; see also Douglas ,
5 M.S.P.R. at 305‑06. Indeed, as set forth in the initial decision, the deciding
5 The appellant’s ar gument in this regard is misguided. Indeed, as stated, charge 1, i.e.,
failure to meet a condition of employment, stemmed from the revocation of the
appellant’s Defense Sexual Assault Advocate Certification Program certification. IAF,
Tab 5 at 35. The r evocation of the appellant’s certification was premised in part on the
conduct underlying charges 3 and 4. ID at 5; IAF, Tab 6 at 22 -24.
7
official took into consideration both aggravating factors, including the nature and
seriousness of the offenses and the appellant’s supervisory status, and mitigating
factors, including the appellant’s lack of prior discipline. ID at 31 -32; IAF, Tab 5
at 60. We discern no shortcomings with the agency’s weighing of the Douglas
factors , and we agree with the administrative judge’s conclusion that the
appellant’s removal did not clearly exceed the bounds of reasonableness. ID
at 33; see Luongo v. Department of Justice , 95 M.S.P.R. 643 , ¶¶ 2 -3, 16 (2004)
(concluding that removal was an appropriate penalty for misconduct involving
improper sexual remarks and innuendo), aff’d , 123 F. App’x 405 (Fed. Cir. 2005) ;
see also Benally v. Department of the Interior , 71 M.S.P.R . 537 , 539‑40 (1996)
(finding appropriate the appellant’s removal for failure to maintain a driver’s
license when the appellant’s lack of the same directly impacted his ability to do
his job) .
¶9 Accordingly, we affirm the initial decision.
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 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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights in cluded in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
9
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 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 s ubmit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
10
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via co mmercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistle blower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activ ities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal case s with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
If you submi t a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Conta ct information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites .aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | QUINN_STANLEY_SF_0752_21_0097_I_1_FINAL_ORDER_1911344.pdf | 2022-03-29 | null | SF-0752 | NP |
4,509 | https://www.mspb.gov/decisions/nonprecedential/CRAWFORD_PHILLIP_CH_0752_21_0069_I_1_FINAL_ORDER_1911385.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
PHILLIP CRAWFORD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -21-0069 -I-1
DATE: March 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
Deborah W. Carlson , 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 initi al decision,
which sustained the appellant’s removal for unsatisfactory attendance. Generally,
we grant petitions such as this one only in th e following circumstances:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous in terpretation of statute or regulation or the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involv ed an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under sec tion 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Boar d’s final decision. 5 C.F.R. § 1201.113 (b).
BACKGROUND
¶2 The appellant was removed from his position as Postmaster of the Oak Park ,
Illinois Post Office effective October 26, 2020 , based on the charge of
unsatisfactory attendance between March 31 and July 2, 2020. Initial Appeal File
(IAF), Tab 5 at 24-29, 65. During this period of absence , the appellant submitted
two medical notes to the agency .2 Id. at 39, 42; IAF, Tab 34 at 21 -22.
On May 12, 2020, the appellant submitted a medical note, dated March 30, 2020,
which described his m edical conditions and symptoms , and stated that because
he was “at high risk of contracting serious infections” he should stay off work
until May 30, 2020. IAF, Tab 5 at 39, 42. Subsequently, on July 6, 2020,
the appellant submitted a second medical note , dated June 1, 2020,
which reiterated the same contents of the first medical note, except it expressly
2 There is a third medical note in the record dated May 18, 2020, which mirrors the
contents of the March 30, 2020 medical note, except that the May 18, 2020 note
specifically mentions COVID -19. IAF, Tab 34 at 80. Notably, March 2020 was the
first month of the COVID -19 pandemic. While the appellant claims to have provided
this document to the age ncy, there is no corroborating evidence in the record supporting
this assertion. Hearing Recording ( HR) (testimony of the appellant).
3
referenced COVID -19 and stated that he shoul d remain off work until
July 6, 2020 . IAF, Tab 34 at 21 -22.
¶3 The appellant filed a Board appeal of h is remov al, and after holding
a hearing, the administrative judge issued an initial decision affirming the
agency’s removal action. IAF, Tab 43, Initial Decision (ID). The appellant has
filed a petition for review, comprised of two letters from his doctor that a re
already in the record.3 Petition for Review (PFR) File, Tab 3 at 5, 7; IAF, Tab 34
at 22 , 80. The agency has filed a response to the appellant’s petition for review.
PFR File, Tab 5.
DISCUSSION OF ARGUME NTS ON REVIEW
The agency proved its charge of unsatisfactory attendance because it proved that
the appellant was absent without leave .
¶4 To support its charge of unsatisfactory attendance, the agency alleged that
the appellant was absent for 392 hours between March 31 and July 2, 2020,
includ ing 160 hours of absence without leave (AWOL) , 40 hours of leave without
pay (LWOP) , and 192 hours of unscheduled sick leave. IAF, Tab 5 at 25.
The administrative judge sustained the agency’s charge , finding that the agency
proved that the appellant was absent on the dates listed, and that his absences
were unauthorized or the agency properly denied his leave requests. ID at 5 -6,
10. Thus, based on her analysis, it appears that the administrative judge sustained
the overall charge of unsatisfactory atte ndance based on the finding that the
agency proved the appellant was AWOL. We agree with this approach.
¶5 When determining whether an agency has proved its charge, the Board
distinguishes between facts supporting a charge, and an element of a charge that
must be proven for the charge to be sustained. See Diaz v. Department of the
Army , 56 M.S.P.R. 415 , 420 (1993) (explaining that the Board distinguishes
3 The appellant has included the same doctor’s note twice in his petition for review.
PFR File, Tab 3 at 5 -6.
4
between “factual recitations supporting a charge whose essential nature does not
change and a charge encompassing more than one element, each of which changes
the nature of the charge”). The agency charged the appellant with unsati sfactory
attendance, and explained that it was because the appellant was absent for a total
of 392 hours over a 3 -mon th period. IAF, Tab 5 at 24-25. However , the agency
need not prove each hour of the absence in order to sustain the unsatisfactory
attendance charge as a whole. See Diaz , 56 M.S.P.R. at 420. Thus, we find that
if the agency proves that the appellant was AWOL for the hours alleged , then this
is sufficient to support the overall charge of unsati sfactory attendance.4
See Burroughs v. Department of the Army , 918 F.2d 170 , 172 (Fed. Cir. 1990)
(explaining that proof of one of the supportin g specifications is sufficient to
sustain a charge).
¶6 To prove an AWOL charge, an agency must show that the employee was
absent from duty, and either that his absence was unauthorized or that his request
for leave was denied properly. Boscoe v. Depart ment of Agriculture , 54 M.S.P.R.
315, 325 (1992). First, the appellant was absent on the dates charged by the
agency. His leave records confirm his absence , and , as the Board has held that
normal office records, compiled in the ordinary course of business, are entitled to
substantial weight , we find that he was absent on the specified dates . Sosa v.
Office of Personnel Mana gement , 76 M.S.P.R. 683, 685 (1997) ; IAF, Tab 32
at 72. Next, we defer to the administrative judge ’s findings that the absences
were unauthorized or leave was properly denied, as she based her findings on the
testimony of the appellant’s supervisor explaining that the appellant did not
follow the agency’s call -in procedures, did not directly notify the supervisor of
the absences, and did not timely provide medical documentation that supported
4 When periods of AWOL are included within an agency’s charge of unsatisfactory
attendance, the Board will consider them as an AWOL charge. See Savage v.
Department of the Army , 122 M.S.P.R. 612 , ¶ 32 (2015 ) (stating that to the extent
periods of AWOL are included in an excessive absences charge, the Board wi ll consider
them as an AWOL charge).
5
his continued absence . ID at 6-10. The Board must give deference to
an administrative judge’s credibility determinations when, as here, they are based
on the observation of the demeanor of witnesses testifying at a hearing. Rapp v.
Office of Personnel Management , 108 M.S.P.R. 674, ¶ 13 (2008). The Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288 , 130 1 (Fed. Cir. 2002).
Because the administrative judge’s determinations are complete, consistent with
the weight of the evidence, and reflect the record, we discern no basis for
overturning her determinations. ID at 6-10.
¶7 Thus , because the agency has est ablished that the appellant was AWOL for
160 hours, or approximately one third of the charged period of absence , we find
the agency’s charge of unsatisfactory attendance as a whole was properly
sustained .5
The appellant did not establish that the agency failed to reasonably accommodate
him because his requests were either retroactive and invalid, or they were
granted .
¶8 In the initial decision, the administrative judge found that the appellant did
not establish his failure to accommodate defense because the re was no evidence
that he requested an accommodation for his disability. ID at 17.
The Rehabilitation Act requires that an agency provide reasonable
accommodation to the known physical or mental limitations of an otherwise
5 While we need not consider whether the agency proved the other facts underlying the
unsatisfactory attendance charge, we acknowledge that, as a general rule, an agency’s
approval of leave for unscheduled absences pr ecludes it from taking an adverse action
based on such absences. Wesley v. U.S. Postal Service , 94 M.S.P.R. 277 , ¶ 14 (2003) .
Howe ver, the Board has recognized exceptions to this rul e for the Postal Service,
which is not subject to the leave regulations of 5 C.F.R. part 630 , holding that the
Postal Service may take disciplinary action against an employee based on his failure to
follo w leave -requesting procedures and his use of unscheduled leave, provided that the
employee is clearly on notice of such requirements and of the likelihood of discipline
for continued failure to comply . Id.; Fleming v. U.S. Postal Service , 30 M.S.P.R. 302 ,
308 (1986). Thus, the agency’s use of unscheduled approved leave as a basis for
a disciplinary action is not per se improper .
6
qualified individual with a di sability unless the agency can show that the
accommodation would cause undue hardship. Clemens v. Department of the
Army , 120 M.S .P.R. 616 , ¶ 10 (2014). 6 While the re are no “magic words” that
an employee must use to request a reasonable accommodation, the employee must
explain that he is requesting an adjustment or modification to working conditions
or duties to assist with his di sability. Patton v. Jacobs Engineering Group ,
874 F.3d 437 , 444 (5th Cir. 2017); see Foster v. Mountain Coal Company ,
830 F.3d 1178 , 1188 (10th Cir. 2016) (explaining that a reasonable
accommodation request “must make clear that the employee wants assistance for
his or her disability ”); Ballard v. Rubin , 284 F.3d 957 , 962 (8th Cir. 2002)
(stating that while there are no magic words needed to request a reasonable
accommodation, th e employee must make clear that he wants assistance for his
disability).7
¶9 To the extent that the appellant’s medical documentation requested that
leave be applied retroactively, the agency was not required to consider such
an accommodation . A reasonable accommodation request must place the agency
on notice of the appellant’s need for assistance with his disability. Patton , 874
F.3d at 444. Thus, a reasonable accommodation must always be prospective
because , otherwise, sufficient notice of such need is not given to the agency.
See id.; see also 42 U.S.C. § 12112 (b)(5) (defining illegal disability
discrimination to include failing to reasonable accommodate “known physical or
menta l limitations”); Clawson -Cano v. Department of Agriculture , EEOC Appeal
No. 0120121727, 2012 WL 3614534 , at *5 (Aug. 17, 2012) (stating that
6 As a Federal employee, the appellant’s disability discrimination claim arises under the
Rehabilitation Act. Clemens , 120 M.S.P.R . 616 , ¶ 10 n.7. The Rehabilitation Act
incorporates the regulatory standards for the Americans with Disabilities Act (ADA) set
forth at 29 C.F.R. part 1630. Id.; 29 U.S.C. § 791(g); 29 C.F.R. § 1614.203 (b).
7 Decisions of courts other than the U.S. Court of Appeals for the Federal Circuit,
although not binding, may be followed if the Board finds the reasoning persuasive .
Mynard v. Office of Personnel Management , 108 M.S.P.R. 58 , ¶ 14 (2008).
7
reasonable accommodation requests are prospective in nature and do not form
a basis for excusing past behavior even if the alleged disability caused the
misconduct).8
¶10 Thus, because the appellant delayed in submitting his medical
documentation to the agency , for the time period that the documentation applied
retroactively, i.e. , March 31 through May 11, 2020 , and May 31 th rough
July 6, 2020, the agency was under no obligation to treat it as a reasonable
accommodation request. IAF, Tab 5 at 39, 42, Tab 34 at 21 -22. However, to the
extent that the medical documentation applied prospectively , i.e. , leave from
May 12 through May 30, 2020, the documentation constitute s a valid reasonable
accommodation request , because it states that the appellant needs assistance,
i.e., leave, due to his medical condition . IAF, Tab 5 at 39, 42 . Nevertheless , the
appellant cannot esta blish that the agency failed to accommodate this request,
because it granted him leave from May 12 through May 30, 2020.9 Hearing
Recording (testimony of the appellant’s supervisor ), IAF, Tab 32 at 72 .
¶11 Accordingly , because the appellant did not establis h his failure to
accommodate claim , we discern no basis for reversing the initial decision . Panter
v. Department of the Air Force , 22 M.S.P.R. 281 , 282 (1984) (stating that
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision ). Furthermore, because we
8 Although decisions from the Equal Employment Opportunity Comm ission (EEOC) are
not binding, the Board generally defers to the EEOC on issues of substantive
discrimination law unless the EEOC’s decision rests on civil service law for its support
or is so unreasonable that it amounts to a violation of civil service la w. Southerland v.
Department of Defense , 119 M.S.P.R. 566 , ¶ 20 (2013).
9 To the extent that the agency used the appellant’s leave from May 12 through
May 30, 2020, as part of the factual basis for its unsatis factory attendance charge,
this was improper, because the leave appears to have been scheduled and approved in
advance o f the absence taken. IAF, Tab 5 at 25, 39, 42; HR (testimony of the
appellant’s supervisor). Nevertheless, as explained above, because we find that the
unsatisfactory attendance charge was properly sustained because the agency proved
160 hours of AWOL, s uch error was not prejudicial .
8
discern no other basis that would support a reversal of the initial decision , we
affirm it. Crosby v. U.S. Postal Service , 74 M.S.P.R. 98 , 106 (1997) (declining to
disturb the admini strative judge’s findings where s he considered the evidence as
a whole, drew appropriate inferences, and made reasoned conclusions);
Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357 , 359
(1987) (same) .
NOTICE OF APPEAL RIG HTS10
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 des cribed 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 appropriat e one to review your case,
you should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice,
the Board cannot advise which option is most appr opriate in any matter.
9
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of partic ular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit.
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by a n action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have
a representative in this case, and your representative re ceives this decision before
10
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, exclu ding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your represen tative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail,
the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submi t a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
11
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S .C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of App eals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
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.
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of compete nt jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
12
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals fo r the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit.
The Board neither endorses the services provided by any attorney nor warrants
that any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | CRAWFORD_PHILLIP_CH_0752_21_0069_I_1_FINAL_ORDER_1911385.pdf | 2022-03-29 | null | CH-0752 | NP |
4,510 | https://www.mspb.gov/decisions/nonprecedential/BENNETT_RONALD_E_DA_4324_15_0492_I_2_FINAL_ORDER_1911395.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RONALD E. BENNETT,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DA-4324 -15-0492 -I-2
DATE: March 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald E. Bennett , San Antonio , Texas, pro se.
Bobbi Mihal , Dallas, Texas, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the September 29, 2016 initial
decision in this appeal. Petiti on for Review (PFR) File, Tab 1; Refiled Appeal
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
File, Tab 11, Refiled Initial Decision. For the 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” signed and dated by the appellant on
August 30, 2017 , and by the agency on September 8, 2017. PFR File, Tab 7 at 9.
The document provides, among other things, that the appellant agreed to
dismissal of the above -captioned appeal in exchange for the promises made by
the agency. Id. at 4-9. The parties moved for dismissal of the appeal as settled.
PFR File, Tab 8.
¶3 Before dismissing a matter as set tled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 7 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
2 The appellant filed a motion to submit additional pleadings, which he stated would
correct mistakes that he made in his petition for review. PFR File, Tab 4. The
appellant’s motion is rendered mo ot due to the Board’s dismissal of the appeal as
settled.
3
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances , and we accept the s ettlement agreement into the record for
enforcement purposes.
¶5 This is the final order of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulation s, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and 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 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
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 advis e which option is most appropriate in any matter.
4
immediately review the law applicable to yo ur claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you 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, wh ich can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file an y such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your rep resentative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EE OC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2 302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your pe tition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018 , permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Cir cuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants b efore the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective website s, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BENNETT_RONALD_E_DA_4324_15_0492_I_2_FINAL_ORDER_1911395.pdf | 2022-03-29 | null | DA-4324 | NP |
4,511 | https://www.mspb.gov/decisions/nonprecedential/DOW_LARRY_M_SF_3443_02_0159_C_4_FINAL_ORDER_1911425.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
LARRY M. DOW,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.
DOCKET NUMBER
SF-3443 -02-0159 -C-4
DATE: March 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Larry M. Dow , Buffalo, New York, pro se.
Marcia L. Smart , 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 rev iew of the compliance initial
decision, which denied his petition for enforcement in this Veterans Employment
Opportunities Act of 1998 (VEOA) appeal . For the reasons set forth below, the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant’s compliance petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114 (e), (g).
BACKGROUND
¶2 In 2000, the appellant, a preference -eligible veteran, applied but was not
selected for a certain position with the agency. Dow v. General Services
Administration , MSPB Docket No. SF -3443 -02-0159 -I-9, Initial Decision (ID)
at 3 (Mar. 23, 2007). He appeal ed his nonselection under VEOA. Id. The
administrative judge determined that corrective action was warranted and issued
an initial decision ordering the agency to reconstruct the hiring process for the
position. ID at 6 -7. After the initial decision be came the final decision of the
Board, Dow v. General Services Administration , MSPB Docket No. SF-3443 -02-
0159 -I-9, Final Order at 2 (Sept. 11, 2007), the appellant commenced a series of
compliance matters, Dow v. General Services Administration , 117 M.S.P.R. 616 ,
¶¶ 3-9 (2012) (detailing the procedural history and substantive claims raised in
each compliance matter). Ultimately, the Boar d found that the agency was not in
compliance with the remedial orders the Board entered in those matters and
issued another order directing compliance. Id., ¶¶ 8 -9, 13 -14, 19 -20.
¶3 Arguing that the agency did not fully comply with that latest order, the
appellant filed another petition for enforcement. Dow v. General Services
Administration , MSPB Docket No. SF -3443 -02-0159 -C-4, Compliance File (CF),
Tab 1. On June 28, 2013, the administrative judge issued a compliance initial
decision finding the agency i n compliance. CF, Tab 15, Compliance Initial
Decision (CID). He notified the parties that the decision would become final on
August 2, 2013, unless a petition for review was filed by that date. CID at 8 .
¶4 On September 9, 2016, the appellant filed a reque st to reopen this
compliance appeal with the Board’s Western Regional Office, which forwarded it
to the Office of the Clerk of the Board ( Office of the Clerk ). Compliance Petition
for Review (CPFR) File, Tab 1 at 1 -2. The Office of the Clerk construed th e
3
appellant’s submission as a petition for review of the June 28, 2013 compliance
initial decision. CPFR File, Tab 1 at 1, Tab 2 at 1. The Office of the Clerk
notified the appellant that his compliance petition was untimely filed and that,
pursuant to 5 C.F.R. § 1201.114 (g), a petition for review that appears to be
untimely filed must be accompanied by a motion to accept the filing as timely or
to waive the time limits. CPFR File, Tab 2 at 1‑2. The Office of the Clerk ,
therefore, invited the appellant to file such a motion and informed him that it
should be filed by October 21, 2016. Id. at 2. The appellant, however, has not
filed any such motion. The agency has responded to the com pliance petition for
review. CPFR File, Tab 4 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶5 Although the appellant titled his submission as a request to reopen, the
Office of the Clerk properly treated it as a petition for review. PFR File, Tab 1 at
2; Valdez v. O ffice of Personnel Management , 103 M.S.P.R. 88 , ¶ 4 (2006)
(providing that the Board treats a request to reopen an initial decisi on that became
a final decision when neither party petitioned for review as an untimely petition
for review). To be timely, a petition for review must be filed within 35 days of
the date of the initial decision’ s issuance or, if the decision was received more
than 5 days after the date of issuance, within 30 days after receipt. 5 C.F.R.
§ 1201.114 (e). Since the appellant has not alleged that the compliance initial
decision at issue was received more than 5 days after the date of issuance, his
petition for review had to be filed by August 2, 2013. CID at 9. Because he filed
it in September 2016, CPFR File, Tab 1 at 1, it is untimely by more than 3 years .
¶6 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, a party must show that he exercised due diligence or ordinary prudence
under the circumstances of his case. See Gaetos v. Department of Veterans
Affairs , 121 M.S.P.R. 201 , ¶ 5 (2014). The appellant has not provided any
4
explanation for his delay. Therefore, we dismiss his compliance petition for
review as untimely filed .
¶7 This is the final decision of the Merit S ystems Protection Board regarding
the timeliness of the compliance petition for review. The June 28, 2013
compliance initial decision remains the final decision of the Board regarding the
appellant’s petition for enforcement in this VEOA 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 fo rum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
6
you do, then you must file with the district court no later than 30 calendar days
after your representative 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 represe ntative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regula r 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 sig nature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice described in section
2302(b) other tha n practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a 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 cou rt of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act , signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | DOW_LARRY_M_SF_3443_02_0159_C_4_FINAL_ORDER_1911425.pdf | 2022-03-29 | null | SF-3443 | NP |
4,512 | https://www.mspb.gov/decisions/nonprecedential/BROWN_DAMON_J_CH_0752_10_0294_M_1_FINAL_ORDER_1911431.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DAMON J. BROWN,
Appellant,
v.
DEPARTMENT OF DEFENS E,
Agency.
DOCKET NUMBER
CH-0752 -10-0294 -M-1
DATE: March 29, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andres Grajales , Esquire , Washington, D.C., for the appellant.
Neil Bloede , Indianapolis , Indiana , for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The U.S. Court of Appeals for the Federal Circuit vacated the Board’s final
decision sustaining the appellant’s removal and remanded the appeal to the Board
for further proceedings. See Brown v. Department of Defense , 733 F.3d 1148 ,
1160 (Fed. Cir. 2016). For the reasons set forth below, we now DISMISS the
appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 Following the Court’s remand order, the parties submitted a document
entitl ed “Settlement Agreement” signed by the agency on November 28, 2016,
and by the appellant on December 5, 2016. Remand File (RF), Tab 4. The
agreement provides, among other things, that the appellant agreed to the
dismissal of his appeal with prejudice to refiling in exchange for the promises
made by the agency. Id.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, w e find here that the parties have, in fact, entered into a settlement
agreement , that they understand the terms of the agreement, and that they want
the Board to enforce those terms. RF, 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 dis missal of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances , and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final order o f the Merit Systems Protecti on 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 RIGH TS
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 thi s 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
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
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 i n 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
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebs ites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
addr ess of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be ad dressed to:
6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to 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 petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the F ederal Circuit or any other circuit court 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 Feder al
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respe ctive websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | BROWN_DAMON_J_CH_0752_10_0294_M_1_FINAL_ORDER_1911431.pdf | 2022-03-29 | null | CH-0752 | NP |
4,513 | https://www.mspb.gov/decisions/nonprecedential/CAMPBELL_JOSEPH_DC_0752_16_0685_I_1_FINAL_ORDER_1911012.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JOSEPH CAMPBELL,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-0752 -16-0685 -I-1
DATE: March 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Byron Bailey , Washington Navy Yard , D.C. , for the appellant .
Brian J. Sheppard , 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 September 9, 2016 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal
File, Tab 14, Initial Decision . For the reasons set forth below, we DISMISS the
appeal as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or dis tinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
May 26, 2017, and by the agency on June 1, 2017. PFR File, Tab 6. The
document provides, among other things, for withdrawal of the appeal. Id.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into t he record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interio r,
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 r ecord
for enforceme nt by the Board. PFR File, Tab 6 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., th e parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final order of the Merit Systems Protecti on 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 ou t 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 wh y the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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 m ost appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017) . If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations with in 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Opportun ity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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 Comm ission
131 M Street, 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).
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
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018 , permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 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 | CAMPBELL_JOSEPH_DC_0752_16_0685_I_1_FINAL_ORDER_1911012.pdf | 2022-03-28 | null | DC-0752 | NP |
4,514 | https://www.mspb.gov/decisions/nonprecedential/QUATRINI_THOMAS_J_AT_1221_14_0586_B_2_FINAL_ORDER_1911030.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
THOMAS J. QUATRINI,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-1221 -14-0586 -B-2
DATE: March 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Archibald J. Thomas, III , Jacksonville, Florida, for the appellant.
Michael Steven Causey and Katie Pull , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER2
¶1 The agency has filed a petition for review of the remand initial decision,
which granted corrective action in the appellant’s individual right of action
appeal. On petition for review, the agency argues that the administrative judge
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 We have reviewed the relevant legislation enacted during the pendency of this appeal
and have concluded that it does not affect the outcome of the appeal.
2
granted corrective act ion on the basis of disclosures that the appellant did not
exhaust before the Office of Special Counsel. Petition for Review (PFR) File,
Tabs 1, 4. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the 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 agency 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.3 5 C.F.R. § 1201.113 (b).
ORDER
¶2 We ORDER the agency to rescind the appellant’s termination and to restore
the appellant effective November 28, 2012. See Kerr v. National E ndowment for
3 In its petition for review, the agency stated that it had complied with the
administrative judge’s order of interim relief and provided evidence reflecting that it
was in the process of providing the appellant an interim appointment effective on the
date of the initial decision. PFR File, Tab 1 at 4, 14 -18. The appellant responded that
the agency had not yet provided him interim s alary a nd benefits. PFR File, Tab 3
at 4-5. On January 9, 2018, the agency replied that i t had ordered the appellant to
report to work on January 8, 2018, that the appellant had sent the necessary forms for
processing his pay and benefits on that date, and that it was in the process of providing
the appellant his pay and benefits. PFR File, Tab 4 at 3 , 7-8. Under these
circumstances, we find that the agency has complied with the interim relief order and,
assuming that any delay constitutes noncompliance, we ex ercise our discretion and do
not dismiss the agency’s petition for review. See Omites v. U.S. Postal Service ,
87 M.S.P.R. 223 , ¶¶ 7-8 (2000) .
3
the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision .
¶3 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the a ppellant 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 t he 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.
¶4 We further ORDER the agency to tell the appellant promptly in writi ng
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181 (b).
¶5 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board ’s Order, and should include the d ates and results of
any communications with the agency. 5 C.F.R. § 1201.182 (a).
¶6 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agr iculture (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
4
Board’s decision in accordance with the attached lists so that payment can be
made within the 60 -day period set forth above.
NOTICE TO THE APPELL ANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND CO STS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 12 21(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 DA MAGES
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 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
5
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 HTS4
The remand initial decision 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 appro priate forum with which to file.
5 U.S.C. § 7703 (b). Although we offer the following summary of available
appeal rights, the Merit Systems Protection Board does not provide legal advice
on which option is most appropriate for your situation and the rights described
below do not represent a statement of how courts will rule regarding which cases
fall within their jurisdiction. If you wish to seek review of this final decision,
you should immediate ly review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failure to file within the
applicable time limit may result in the dismissal of your case by your chosen
forum.
Please read carefully each of the t hree main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc. uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an app eal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neithe r endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed tha t you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
7
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this d ecision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be ac cessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC ) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no late r than 30 calendar days after your representative 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 7 7960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “rai ses 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 judici al review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction .
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the 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 before 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.
Contact information for the courts of appeals can be 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).
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 O vertime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF -50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1 -7 above.
The following information must be included on AD -343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FL SA, 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. | QUATRINI_THOMAS_J_AT_1221_14_0586_B_2_FINAL_ORDER_1911030.pdf | 2022-03-28 | null | AT-1221 | NP |
4,515 | https://www.mspb.gov/decisions/nonprecedential/DANIELS_JUAN_A_AT_0353_17_0310_I_1_FINAL_ORDER_1911102.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JUAN A. DANIELS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
AT-0353 -17-0310 -I-1
DATE: March 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lorenzo Cobb , Sugarhill, Georgia, for the appellant.
Erika F. Campbell -Harris , Atlanta, Georgia, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 On May 9, 2017, the appellant filed a petition for review of the initial
decision that dismissed his restoration appeal for lack of jurisdiction. Initial
Appeal File, Tab 8, Initial Decision; Petition for Review (PFR) File, Tab 1. On
January 19, 2018, the appellant, through his attorney, filed a submission stating
that he was withdrawing his petition f or review and did not wish to pursue 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
requ ired to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
matter further because the agency had returned him to work and “back paid” him
for the time periods at issue. PFR File, Tab 5. On January 26, 2018, the
appellant’s attorney sent a letter to a settlement attorney w ith Board’s Office of
General Counsel, stating that the appellant understood that the withdrawal of his
petition for review was with prejudice to refil ing. PFR File, Tab 6 at 1. With the
letter, the appellant’s attorney submitted a statement signed by the agency
representative on January 26, 2018, asserting that the agency did not object to the
appellant’s withdrawal of the petition for review . Id. at 2.
¶2 By order dated July 23, 2018, the Clerk of the Board informed the parties
that, pursuant to a May 11, 2018 Delegation of Authority, the Office of the Clerk
of the Board had been “delegated authority to grant a petitioner’s request to
withdraw his petition for review.” PFR File, Tab 7 at 1 n. *. The order noted the
appellant’s January 19, 2018 submissi on requesting to voluntarily withdraw the
petition for review, and his January 26, 2018 submission confirming his intent to
withdraw the petition for review with prejudice . Id. at 1-2. Consistent with the
May 11, 2018 Delegation of Authority, the Clerk d irected the appellant to submit
a brief pleading confirming that his request to withdraw his petition for review
was voluntary and that he underst ood the withdrawal was with prejudice to
refiling with the Board. Id. at 2. The appellant did not respond to the July 23,
2018 order.
¶3 On August 28, 2018, the Clerk of the Board issued a second order, which
noted the appellant’s failure to respond to the July 23, 2018 order and instructed
him to file a brief pleading within 7 days of the second order confirming his
request to withdraw. PFR File, Tab 8 at 1-2. The second order also stated that,
“[i]f the appellant does not file a pleading confirming his intent, the Clerk of the
Board will not act on his request to withdraw the petition for review , and the
Board will instead issue a decision following the restoration of a Board quorum.”
Id. at 1-2 (emphasis removed). In addition, the Clerk ordered the agency to
3
submit a brief pleading stating whether it objected to the appellant’s withdrawal
of the petition for review. Id. at 2.
¶4 The appellant again did not respond. The agency submitted a copy of the
agency representative’s January 26, 2018 signed statement asserting that the
agency did not object to the appellant’s withdrawal of his petition for review.
PFR File, Tab 9.
¶5 Thereafter, the Clerk of the Board issued an order informing the parties
that, “[i]n light of the appellant’s failure to confirm his intent to withdraw the
petition for review , the Office of the Clerk of the Board will take no further
action t o process the appellant’s request to withdraw the petition for review under
the May 11, 2018 policy.” PFR File, Tab 1 0 at 1 (emphasis removed). The order
further informed the parties that the appellant’s petition for review would be
returned to the Board for consideration and that the Board would issue a decision
on the petition for review following the restoration of a Board quorum. Id. at 1-2.
¶6 Because a Board quorum has been restored, we can issue a decision on the
petition for review . Although the ap pellant did not avail himself of the option of
having the Clerk of the Board dismiss his petition for review as withdrawn
pursuant to the May 11, 2018 Delegation of Authority, we discern no basis not to
give effect to the appellant’s January 19, 2018 reque st to withdraw the petition
for review, signed by the appellant’s attorney , and supplemented by his attorney’s
January 26, 2018 letter explicitly stating that the appellant understood that his
withdrawal was with prejudice to refiling. PFR File, Tab s 5-6. Moreover, as
noted above, the agency has submitted a statement asserting that it has no
objection to the appellant’s request to withdraw his petition for review. PFR File,
Tab 9. We find that withdrawal of the petition for review is appropriate under t he
circumstances.
¶7 Accordingly, we DISMISS the petition for review as withdrawn with
prejudice to refiling.
4
¶8 The initial decision of the administrative judge is final. This is the Board’s
final decision in this matter. Title 5 of the Code of Federal Regu lations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the f ollowing summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regardi ng which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the app licable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a pa rticular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.
5
If you su bmit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additi onal information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’ s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regard ing pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicia l or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrim ination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calen dar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
6
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for re view to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enha ncement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
7
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
compete nt jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our 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 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
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 | DANIELS_JUAN_A_AT_0353_17_0310_I_1_FINAL_ORDER_1911102.pdf | 2022-03-28 | null | AT-0353 | NP |
4,516 | https://www.mspb.gov/decisions/nonprecedential/JACKSON_DINA_TL_DC_1221_17_0104_W_1_FINAL_ORDER_1911124.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
DINA T.L. JACKSON,
Appellant,
v.
DEPARTMENT OF STATE,
Agency.
DOCKET NUMBER
DC-1221 -17-0104 -W-1
DATE: March 28, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donald M. Temple , Esquire, Washington, D.C., for the appellant.
Marianne Perciaccante , Washington, D.C., for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 On February 27, 2017, t he appellant filed a petition for review of the initial
decision that dismissed her individual right of action appeal for lack of
jurisdiction . Initial Appeal File, Tab 15, Initial Decision; Petition for Review
(PFR) File , Tab 1 . Thereafter, on March 24, 20 17, the agency filed a response to
the petition for review and a cross petition for review of the initial decision . 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 3. On May 8, 2017, the appellant submitted a consent motion, signed
by her attorney, which requested that her claims against the agency in the matter
be dismissed. PFR File , Tab 5. Three days later, on May 11, 2017, the parties
submitted a consent motion, signed by the appellant’s attorney and the agency
representative, which jointly requested that the Board grant the appella nt’s
request to dismiss the pending petition for review with prejudice to refil ing. PFR
File, Tab 7.
¶2 Subsequently, on June 7, 2018 , the Acting Clerk of the Board informed the
parties that, pursuant to a May 11, 2018 Delegation of Authority, the Office o f the
Clerk of the Board had been “delegated authority to grant a petitioner’s request to
withdraw h er petition for review.” PFR File, Tab 8 at 1-2 n.1. The order noted
the parties’ May 11, 2017 submission consenting to the dismissal of the
appellant’s petition for review with prejudice and informed the appellant that,
consistent with the May 11, 2018 Delegation of Authority, she was ordere d to
submit a confirmation of her request to withdraw her petition for review. Id. at 2.
The agency responded, ind icating that it did not object to the appellant’s
withdrawal of her petition for review and that it would withdraw its cross petition
for review were the appellant to first withdraw her petition. PFR File, Tab 9.
The appellant did not respond to the June 7, 2018 order or to the agency’s
response.
¶3 On August 3 , 2018, the Clerk of the Board issued a second order, which
noted the appellant’s failure to respond to the June 7, 2018 order and instructed
her to file a brief pleading confirming her request to wi thdraw within 7 days of
the second order . PFR File, Tab 10 at 1-2. That order also stated that, “[i]f the
appellant does not file a pleading confirming h er intent, no further action will be
taken by the Office of the Clerk of the Board to process the app ellant’s request to
withdraw the petition for review under the May 11, 2018 policy signed by
Vice Chairman Mark A. Robbins, and the Board will instead issue a decision
3
following the restoration of a Board quorum.” Id. at 1-2 (emphasis removed ).
The appel lant again did not respond.
¶4 Thereafter, the Clerk of the Board issued an order informing the parties
that, “[i]n light of the ap pellant’s failure to confirm her intent to withdraw the
petition for review, the Office of the Clerk of the Board will take no further
action to process the appellant’s request to withdraw the petition for review under
the May 11, 2018 policy.” PFR File, Tab 11 at 2 (emphasis removed). The order
further informed the parties that the appellant’s petition for review and the
agency’s cross petition for review would be returned to the Board for
consideration and that the Board would issue a decision on the petition for review
and the cross petition for review following the restoration of a Board quorum. Id.
at 2.
¶5 Now that a Board quorum has been restored, we can act on the matters
presented on review. Although the appellant did not avail herself of the option of
having the Clerk of the Board dismiss her petition for review as withdrawn
pursuant to the May 11, 2018 Delegation of Authority, we discern no basis not to
give effect to the parties’ May 2017 consent motion, signed by both the
appellant’s attorney and the agenc y’s representative, which jointly requested the
voluntary dismissal of the pending petition for revie w with prejudice to refiling .
PFR File, Tab 7. We find that withdrawal of the petition for review is appropriate
under the circumstances . In addition , because the agency indicated that it would
withdraw its cross petition for review if the appellant withdrew her petition for
review , we find that withdrawal of the cross petition for review also is
appropriate under the circumstances . PFR File, Tab 9.
¶6 Accordingly, we DISMISS the petition for review and the cross petition for
review as withdrawn with prejudice to refiling.
4
¶7 The initial decision of the administrative judge is final. This is the Board’s
final decision in this matter. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicia l review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Ci rcuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Pe titioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any att orney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
6
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
7
(3) Judicial 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.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,” whic h is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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
If you are interested in securing pro bono 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 | JACKSON_DINA_TL_DC_1221_17_0104_W_1_FINAL_ORDER_1911124.pdf | 2022-03-28 | null | DC-1221 | NP |
4,517 | https://www.mspb.gov/decisions/nonprecedential/DELAITTRE_DAVID_J_CB_7521_15_0014_T_1_FINAL_ORDER_1910801.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SOCIAL SECURITY
ADMINISTRATION,
Petitioner,
v.
DAVID J. DELAITTRE,
Respondent.
DOCKET NUMBER
CB-7521 -15-0014 -T-1
DATE: March 25, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew C. Miller , Esquire, and Nancy Morales Gonzalez , Esquire, Kansas
City, Missouri, for the petitioner .
Kathleen Louise Henley Petty , Esquire, Baltimore, Maryland, for the
petitioner.
Kathy Reif , Esquire, Seattle, Washington, for the petitioner .
John Andrews , Esquire, and Nina Kunish , Esquire, Bremerton, Washington,
for the respondent.
Jeffery M. Campiche , Esquire, Seattle, Washington, for the respondent.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leav itt, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been id entified by the Board
as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
FINAL ORDER
¶1 The respondent has petitioned for review of the April 13, 2016 initial
decision in this matter . Petition for Review (PFR) File, Tab 6; Initial Appeal
File, Tab 232, Initial Decision. After the filing of the petition for review,
however, the respondent submitted an unopposed motion to vacate the initial
decision and to dismiss his petition for review with prejudice to refiling.2
PFR File, Tab 12 at 4 -5. The agency subsequently affirmed that it did not
oppose the respondent’s moti on. PFR File, Tab 13.
¶2 Under the circumstances present here, we find it appropriate to grant the
respondent’s unopposed motion. Accordingly , we VACATE the initial decision
and DISMISS the respondent’s petition for review as withdrawn with prejudice
to ref iling. See 5 C.F.R. § 1201.117 (b).
¶3 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS3
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
2 Although the respondent indicated that the parties had entered into a settleme nt
agreement resolving the appeal, he did not provide a copy of the document. PFR File,
Tab 12 at 4. He also stated that the parties elected to not have the settlement agreement
entered into the record for enforcement by the Board. Id.
3 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.
3
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this 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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U. S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Form s 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involvi ng a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this d ecision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enh ancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice descri bed in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 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.
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 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.
The All Circuit Review Act is re troactive 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 | DELAITTRE_DAVID_J_CB_7521_15_0014_T_1_FINAL_ORDER_1910801.pdf | 2022-03-25 | null | CB-7521 | NP |
4,518 | https://www.mspb.gov/decisions/nonprecedential/BALDWIN_TIMOTHY_AT_0432_17_0453_I_1_FINAL_ORDER_1910238.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
TIMOTHY BALDWIN,
Appellant,
v.
DEPARTMENT OF AGRICU LTURE,
Agency.
DOCKET NUMBER
AT-0432 -17-0453 -I-1
DATE: March 24, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard Shane McLaughlin , Esquire, Tupelo, Mississippi, for the appellant.
Jerry Garcia and Shannon L. Swaziek , Esquire , Albuquerque, New Mexico,
for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the May 23, 2017 initial decision
in this appeal. Petition for Review (PFR) 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 agency submitted a document
entitled “ Motion to Dismiss Petition for Review.” PFR File, Tab 4. This motion
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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
referenced an attached document entitled “ SETTLEMENT AGREEMENT”
signed and dated by the parties on January 25, 2018 . Id. The document s
provide, among other things, that the appellant agreed to withdraw with prejudice
all claims and appeals against the agency. PFR File, Tab 4 at 11 .
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have en tered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before acc epting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdic tion over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 4 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
¶5 Accordingly, we find that dismissing the petition for review “with prejudice
to refiling” (i.e., the parties normally may not refile this appe al) 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, s ection 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 par ty 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 th e 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 RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
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/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 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:
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
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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained 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 | BALDWIN_TIMOTHY_AT_0432_17_0453_I_1_FINAL_ORDER_1910238.pdf | 2022-03-24 | null | AT-0432 | NP |
4,519 | https://www.mspb.gov/decisions/nonprecedential/COHEN_BARRY_ALAN_DC_315H_18_0100_I_1_FINAL_ORDER_1909616.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BARRY ALAN COHEN,
Appellant,
v.
DEPARTMENT OF THE NA VY,
Agency.
DOCKET NUMBER
DC-315H -18-0100 -I-1
DATE: March 22, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Barry Alan Cohen , Sneads Ferry, North Carolina, pro se.
Justin P. Sacks , Falls Church, Virginia, 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 7, 2017 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal
File, Tab 12, 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 Afte r the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
February 6, 2018, and by the agency on Feb ruary 7, 2018 . PFR File, Tab 6
at 8-9. The document provides, among o ther things, that the appellant agreed to
withdraw the above -captioned appeal in exchange for the promises made by the
agency. Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreem ent, 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. Po stal 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 determin e whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled ).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and do not intend for the agreement to be entered into the
record for enforceme nt by the Board. PFR File, Tab 6 . 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 appropr iate
under these circumstances.
3
¶6 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulatio ns, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the 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 y our case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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) .
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 c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additi onal information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’ s Rules of 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 regardin g pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept r epresentation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discriminat ion. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection 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 y our 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 info rmation for U.S. district courts can be found at their respective
websites, which can be ac cessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the 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. mai l, 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 hav e 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 petiti on for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B) .
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the c ourt at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availab le at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practic e, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act , signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit 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
for Merit Systems Protection Board appellants before the 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 ac cessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | COHEN_BARRY_ALAN_DC_315H_18_0100_I_1_FINAL_ORDER_1909616.pdf | 2022-03-22 | null | DC-315H | NP |
4,520 | https://www.mspb.gov/decisions/nonprecedential/BREEDLOVE_RACHEL_DA_3443_17_0023_I_1_FINAL_ORDER_1909043.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RACHEL BREEDLOVE,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
DA-3443 -17-0023 -I-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rachel Breedlove , Rock Hill, South Carolina, pro se.
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 petitioned for review of the November 17, 2016 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal
File, Tab 6, 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 o rders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the B oard
as 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 AGREEMENT” signed and dated by the parties on
August 24, 2017 . PFR, File Tab 3. The document provides, among other things,
that the appellant agreed t o the dismissal of the above -captioned appeal in
exchange for the promises made by the agency. Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before 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 (2002) , ¶ 4,
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 findin g 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. PF R File, Tab 3 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final order of the Merit Systems Protection Board in this appeal.
Title 5 of the Code of Federal Regulation, se ction 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this a ppeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within the ir
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropri ate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notic e 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 Appeal s for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S . Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases invo lving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websi tes, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
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 EEO C 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 protect ed activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited p ersonnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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 whistl eblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained wi thin the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for inf ormation regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case .
Contact information for the 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 | BREEDLOVE_RACHEL_DA_3443_17_0023_I_1_FINAL_ORDER_1909043.pdf | 2022-03-21 | null | DA-3443 | NP |
4,521 | https://www.mspb.gov/decisions/nonprecedential/LLOYD_STEVEN_J_CH_0752_17_0360_I_1_FINAL_ORDER_1909102.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
STEVEN J. LLOYD,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
CH-0752 -17-0360 -I-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
William E. Leber , Esquire, Delaware, Ohio, for the appellant.
Miriam Dole , Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant h as filed a petition for review of the initial decision, which
dismissed his appeal of the agency’s removal action as untimely filed . On
petition for review, the appellant argues that the medical evidence he submitted
below evidenced good cause for his unt imely filing and that he was entitled 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
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
hearing on the question of timeliness .2 Petition for Review (PFR) File, Tab 1.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or 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 appe al, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, th e nature of your claims determines the time limit for seeking such
2 On January 30, 2018, the appellant filed to withdraw his petition for review. Petition
for Review (PFR) File, Tab 4. To ensure that the request was knowing and voluntary,
the Clerk of the Board o rdered the appellant to submit a pleading confirming that his
request to withdraw was voluntary and that he understood the withdrawal was with
prejudice to refiling with the Board. PFR File, Tab 6 at 1 -2. The appellant failed to
respond to the order, and the Clerk of the Board issued a second order informing the
appellant that, if he did not file a pleading confirming his intent, the Clerk of the Board
would not act on his request to withdraw the petition for review, and the Board would,
instead, issue a decision following the restoration of a Board quorum. PFR File, Tab 7.
The appellant did not respond to the second order, and the Clerk of the Board returned
the petition for review to the Board for consideration. PFR File, Tab 9.
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.
3
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available ap peal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriat e one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to th e U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5 , 6, 10, and 11.
4
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may o btain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of pre payment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. dis trict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) 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 receive s this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8 ), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition f or
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
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, yo u must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availab le at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securin g pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before th e Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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.
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 | LLOYD_STEVEN_J_CH_0752_17_0360_I_1_FINAL_ORDER_1909102.pdf | 2022-03-21 | null | CH-0752 | NP |
4,522 | https://www.mspb.gov/decisions/nonprecedential/SIMPKINS_CHIQUITA_JEANETTE_PH_0752_16_0446_I_1_FINAL_ORDER_1909122.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CHIQUITA JEANETTE SI MPKINS,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.
DOCKET NUMBER
PH-0752 -16-0446 -I-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Stephanie M. Herrera , Esquire and Alexis Tsotakos , Esquire , Silver Spring,
Maryland, for the appellant.
Daniel Hutman , Esquire, Baltimore, 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 December 8, 2016 i nitial
decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal
File, Tab 16, Initial Decision . During later settlement discussions, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).
2
filed a pleadi ng with the Board requesting dismissal of her appeal and petition for
review with prejudice .2 PFR File, Tabs 5 -6. The agency respond ed that it ha d no
objection to the appellant’s motion . PFR File, Tab 7.
¶2 Finding that withdrawal is appropriate under thes e circumstances, we
DISMISS the appellant’s appeal and petition for review with prejudice to refiling.
¶3 This is the final decision of the Merit Systems Protection Board in this
appeal . Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 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 described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek 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
2 Although the appellant indicated that the parties had entered into a settlement
agreement resolving the appeal, she did not provide a copy of the document. PFR File,
Tabs 5 -6.
3 Since the issuanc e of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
about whether a particular forum is the appropriate one to review your case, you
should contact 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
for Merit Systems Protection 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
4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Fede ral Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection 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 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
5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be 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 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.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B) .
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
4 The original statutory prov ision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appell ants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retr oactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
6
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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locat or/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SIMPKINS_CHIQUITA_JEANETTE_PH_0752_16_0446_I_1_FINAL_ORDER_1909122.pdf | 2022-03-21 | null | PH-0752 | NP |
4,523 | https://www.mspb.gov/decisions/nonprecedential/TROMBLY_JEREMIAH_DA_1221_14_0518_X_1_FINAL_ORDER_1909139.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
JEREMIAH TROMBLY,
Appellant,
v.
DEPARTMENT OF THE AI R FORCE,
Agency.
DOCKET NUMBER
DA-1221 -14-0518 -X-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cheri L. Cannon , Esquire and Nnenne Agbai , Esquire, Washington, D.C.,
for the appellant.
Lawrence Lynch , Esquire, Randolph , Texas, for the agency.
Kristen Marie Hollering , Esquire, Houston, Texas, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
FINAL ORDER
¶1 On August 17, 2016, the administrative judge issued a compliance initial
decision granting the appellant’s petition for enforcement and finding the agency
in noncompliance with the Board’s final decision in MSPB Docket No.
DA-1221 -14-0518 -W-2. Trombly v. Department of the Air Force , MSPB Docket
No. DA-1221 -14-0518 -C-1, Compliance File, Tab 17, Compliance Initial
Decision. As the agency did not file a statement of compliance, and neither party
filed a petition for review of the compliance initial decision, within time limit set
forth in 5 C.F.R. § 1201.114 , the administrative judge’s findings of
noncompliance become final , and the appellant’s petition for enforcement was
referred to the Board for a final decision on issues of compliance pursuant to
5 C.F.R. § 1201.183 (b)-(c). Trombly v. Department of the Air Force , MSPB
Docket No. DA -1221 -14-0518 -X-1, Compliance Referral File (CRF), Tab 8. For
the reasons set forth below, we DISMISS the appellant’s petition for enforcement
as settled .
¶2 While the appellant’s petition for enforcement was pending before the
Board, the parties submitted a document entitled “ NEGOTIATED
SETTLEMENT AGREEMENT ,” signed and dated on March 10, 2017. CRF ,
Tab 10. The settlement agreement provide s, in relevant part , that the appellant
agreed to withdraw his petition for enforcement in exchange for the promises
made by the agency . Id. at 6.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board . See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes , the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
3
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,
understan d its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. CRF, Tab 10. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissal of the petition for enforcement “with
prejudice to refiling” (i.e., the parties normally may not refile this appeal) is
appropriate under these circumstances, and we accept the settlement agreement
into the record for enforcement purposes.
¶5 This is the final order 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 ).
NOTICE TO THE PARTIE S OF THE IR
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 init ial
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).
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 of fer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rul e regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file withi n the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whe ther a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition f or review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 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 unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of you r discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your repres entative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex , national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
6
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websi tes, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportun ity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1) . If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for revi ew to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
7
disposition of allegations of a prohibited personnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act , signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit co urt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
8
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 | TROMBLY_JEREMIAH_DA_1221_14_0518_X_1_FINAL_ORDER_1909139.pdf | 2022-03-21 | null | DA-1221 | NP |
4,524 | https://www.mspb.gov/decisions/nonprecedential/SMITH_MICHAEL_T_AT_1221_17_0063_W_1_FINAL_ORDER_1909146.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MICHAEL T. SMITH,
Appellant,
v.
DEPARTMENT OF THE AR MY,
Agency.
DOCKET NUMBER
AT-1221 -17-0063 -W-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael T. Smith , Homestead, Florida, pro se .
Shannon M. Callahan , Esquire , Fort Sam Houston, Texas, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the February 22, 2017 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal
File, Tab 14, Initial Decision . For the reasons set forth below, we 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 nonpreceden tial orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
¶2 After the filing of the petition for review, on May 23, 2017, the agency
submitted a document entitled “ JOINT AGREEMENT AMICABLY
RESOLVING THE APPEALS ” signed by both parties . PFR File, Tab 7. The
document provides, among other things, that the appellant ag reed to withdraw the
above -captioned appeal in exchange for the promises made by the agency . Id.
at 6-7.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand it s
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parti es have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 7 . In addition, we find that the
agreement is lawful on its face and that the partie s freely entered into it. Id.
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final order 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 petition for enforceme nt 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 an d 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 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.
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 decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations with in 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 Opportun ity Commission
P.O. Box 77960
Washington, D.C. 20013
If 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 Comm ission
131 M Street, 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 u nder 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D) .
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), ( C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 l ink below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | SMITH_MICHAEL_T_AT_1221_17_0063_W_1_FINAL_ORDER_1909146.pdf | 2022-03-21 | null | AT-1221 | NP |
4,525 | https://www.mspb.gov/decisions/nonprecedential/HYMAN_RANDY_ELLEN_AT_0752_16_0401_I_1_FINAL_ORDER_1909151.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RANDY ELLEN HYMAN,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.
DOCKET NUMBER
AT-0752 -16-0401 -I-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacob Y. Statman , Esquire, Pikesville, Maryland, for the appellant.
Rebecca Snowdall , Regan A.W. Herald , and Kenneth M. Willner ,
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 of the November 1, 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
File, Tab 27 , Initial Decision . For the reasons set forth below, we DISMISS the
appea l as settled.
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the appellant on
January 17, 2017, and by the agency on January 18, 2017 . PFR File, Tab 5. The
document provid es, among other things, that the appellant agreed to withdraw
with prejudice his claims in the above -captioned appeal in exchange for the
promises made by the agency . Id. at 6. On June 23, 2017, the agency withdrew
its petition for review. Id. at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Managemen t, 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorm e 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 reco rd, 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 5 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., t he parties normally may not refile this appeal) is appropriate under these
circumstances , and we accept the settlement agreement into the record for
enforcement purposes.
3
¶5 This is the final order 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 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out t he 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 t he
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1) . By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summar y of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise w hich option is most appropriate in any matter.
4
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
5
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you hav e a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity C ommission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calen dar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with t he EEOC no later than 30 calendar days after your representative 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 Commiss ion
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be 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 peti tion for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | HYMAN_RANDY_ELLEN_AT_0752_16_0401_I_1_FINAL_ORDER_1909151.pdf | 2022-03-21 | null | AT-0752 | NP |
4,526 | https://www.mspb.gov/decisions/nonprecedential/MOORE_SHERRIANN_C_DC_0752_17_0057_I_1_FINAL_ORDER_1909186.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SHERRIANN C. MOORE,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.
DOCKET NUMBER
DC-0752 -17-0057 -I-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sarah Martin , Esquire and Richard Renner , Esquire , Washington, D.C., for
the appellant.
Jennifer Blake Smith , Washington, D.C., for the agency.
Madeha Chaudry Dastgir , Esquire, Chicago, Illinois, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Membe r
FINAL ORDER
¶1 After issuance of the April 7, 2017 i nitial decision in this appeal , the parties
notified the Board that they had settled the appeal . Petition for Review (PFR)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
File, Tab 12; Initial Appeal File, Tab 39. For the reasons set forth below, we
DISMISS the appeal as settled.
¶2 On June 30, 2017, the agency submitted a document entitled
“SETTLEMENT AGREEMENT” signed and dated by the parties on June 20,
2017. PFR File, Tab 1 at 7. The document provides, among other things, that
the appella nt agreed to withdraw the above -captioned appeal in exchange for the
promises made by the agency . Id. at 2.
¶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 Per sonnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior findin g 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. PF R File, Tab 1 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissal of the appeal “with prejudice to refiling”
(i.e., the parties normally may not refile this appeal) is appropriate under these
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 a
petition for review of the initial decision. PFR File, Tabs 1 -2.
3
circumstances , and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal 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. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawfu l discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other prot ected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibite d personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit o r any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
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 appeal s of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D .C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/C ourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MOORE_SHERRIANN_C_DC_0752_17_0057_I_1_FINAL_ORDER_1909186.pdf | 2022-03-21 | null | DC-0752 | NP |
4,527 | https://www.mspb.gov/decisions/nonprecedential/AGEE_BOB_T_SF_0831_16_0532_I_1_FINAL_ORDER_1909194.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
BOB T. AGEE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
SF-0831 -16-0532 -I-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kimberly H. Berry , Esquire , and Alison R. Wills , Esquire , Reston,
Virginia, for the appellant.
Cynthia Reinhold , 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 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
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board ’s case law. See 5 C.F.R. § 1201.117 (c).
2
File, Tab 21 , Initial Decision . For the reasons set forth below, we DISMISS the
appeal as settled .
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed and dated by the parties on
June 20, 2017. PFR File, Tab 5 . The document provides, among other things,
that the appellant agreed to the dismissal of his appeal with prejudice to refiling
in exchange for the promises made by the agency. Id. at 1.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they unders tand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before accepting a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 5. In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissing the appeal “with prejudice to refiling” (i.e.,
the parties normally may not refile this appeal) is appropriate under these
circumstances, and we accept the settlement agree ment into the record for
enforcement purposes.
3
¶5 This is the final order 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 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failu re to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the 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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have que stions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional 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
5
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 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.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the 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 | AGEE_BOB_T_SF_0831_16_0532_I_1_FINAL_ORDER_1909194.pdf | 2022-03-21 | null | SF-0831 | NP |
4,528 | https://www.mspb.gov/decisions/nonprecedential/ORFANEL_MATTEO_AT_0752_17_0495_I_1_FINAL_ORDER_1909232.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MATTEO ORFANEL,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-0752 -17-0495 -I-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matteo Orfanel , Orlando, Florida, pro se.
Jonathan Tabacoff , Esquire and Katharine Johnson , Esquire , 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 June 30, 2017 initial decision
in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal File,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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
Tab 11, Initial Decision . For the 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” signed and dated by the agency on
May 29, 2018, and by the appellant on June 1, 2018. PFR File, Tab 4 at 8. The
document provides, among other things, that the appellant agreed to withdraw the
above -captioned ap peal in exchange for the promises made by the agency . Id.
at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have t he 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 acceptin g a settlement agreement into the
record for enforcement purposes, the Board must determine whether the
agreement is lawful on its face and whether the parties freely entered into it . See
Massey v. Office of Personnel Management , 91 M.S.P.R. 289 , ¶ 4 (2002) ,
overruled on other grounds by Delorme v. Department of the Interior ,
124 M.S.P.R. 123 , ¶¶ 11 -21 (2017) ( holding that the Board may enforce
settlement agreements that have been entered into the record, independent of any
prior finding of Board jurisdiction over the underlying matter being settled ).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 4. In addition, we find that the
agreement is lawfu l on its face and that the parties freely entered into it. Id.
2 The settlement agreement covers two other cases pending on petition for review,
MSPB Docket Nos. AT -0752 -16-0821 -I-1 and AT -3443 -17-0611 -I-1. PFR File, Tab 4
at 4. The administrative judge dismis sed two other cases, MSPB Docket Nos. AT -0752 -
18-0131 -I-1 and AT -1221 -17-0751 -W-1, pursuant to the same settlement agreement in
initial decisions dated June 5, 2018.
3
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.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carr ied 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 decis ion. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights descr ibed below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
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 a ll
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one app lies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Fe deral Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receive s this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court -appointed lawyer and
to waiver of any requirement of prepaym ent of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Cour t_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a represent ative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 signa ture, it must be 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) ot her than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Co urt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Me rit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D. C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORFANEL_MATTEO_AT_0752_17_0495_I_1_FINAL_ORDER_1909232.pdf | 2022-03-21 | null | AT-0752 | NP |
4,529 | https://www.mspb.gov/decisions/nonprecedential/RUCKER_ENDRELL_A_AT_0752_16_0712_I_1_FINAL_ORDER_1909240.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
ENDRELL A. RUCKER,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
AT-0752 -16-0712 -I-1
DATE: March 21, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Deena Wingard , Fayetteville, Georgia, for the appellant .
Sophia E. Haynes , 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 October 6, 2016 initial
decision in this appeal. Initial Appeal File, Tab 12, Initial Decision ; Petition for
Review (PFR) File, Tab 1. The appellant decided to w ithdraw the petition for
review and submitted letter s to that effect. P FR File, Tabs 5 -6. One of the letter s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
require d to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
includes a statement signed by the agency’s representative declaring that the
agency has no objection to the appellant withdraw ing his petition for review.
PFR 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 initial decision of the administrative judge is final. This is the Board’s
final decision in this matter. Title 5 of the Code of Federal Regulations,
section 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS3
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable t ime
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 As noted in the February 24, 2017 letter acknowledging the appellant’s petition for
review and the July 2, 2018 notice regarding the appellant’s request to withdraw the
petition for review, the a ppellant’s petition appears to be untimely; however, given the
Board’s disposition in this matter, it need not address the untimeliness of the
appellant’s petition for review.
3 Since the issuance of the initial decision in this matter, the Board may hav e updated
the notice 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
about whether a particular fo rum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U .S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a peti tion for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional inform ation about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC r eview of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. I f so, you may obtain
4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection 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/CourtWeb sites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). 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
5
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 you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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.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
whistleb lower claims by any court of appeals 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 decision s in certain whistleblower 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
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Cou rt of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6 , 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Mer it Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | RUCKER_ENDRELL_A_AT_0752_16_0712_I_1_FINAL_ORDER_1909240.pdf | 2022-03-21 | null | AT-0752 | NP |
4,530 | https://www.mspb.gov/decisions/nonprecedential/ORFANEL_MATTEO_AT_3443_17_0611_I_1_FINAL_ORDER_1908763.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
MATTEO ORFANEL,
Appellant,
v.
DEPARTMENT OF HOMELA ND
SECURITY,
Agency.
DOCKET NUMBER
AT-3443 -17-0611 -I-1
DATE: March 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matteo Orfanel , Orlando, Florida, pro se.
Jonathan Tabacoff , 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 July 19, 2017 initial decision
in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal File, Tab 6,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the 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. For the reasons set forth below, we DISMISS the appeal as
settled.2
¶2 After t he filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AGREEMENT” signed a nd dated by the agency on
May 29, 2018, and by the appellant on June 1, 2018. PFR File, Tab 3 at 8. The
document provides, among other things, that the appellant agreed to withdraw the
above -captioned appeal in exchange for the promises made by the agency . Id.
at 4.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties have entered into a settlement agreement, whether they understand its
terms, and whether they intend to have the agreement entered into the record for
enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R.
146, 149 (1988). In addition, before 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 ove r the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 3 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
2 The settlement agreement covers two other cases pending on petition for review,
MSPB Docket Nos. AT -0752 -16-0821 -I-1 and AT-0752 -17-0495 -I-1. PFR File, Tab 3
at 4. The administrative judge dismis sed two other cases, MSPB Docket Nos. AT -0752 -
18-0131 -I-1 and AT -1221 -17-0751 -W-1, pursuant to the same settlement agreement in
initial decisions dated June 5, 2018.
3
Accordingly, we find that dismissing the appeal “with prejudice to refiling” (i.e.,
the parties normally may not refile this appeal) is appropr iate under these
circumstances, and we accept the settlement agreement into the record for
enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113 ).
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the 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 whi ch to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
approp riate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
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 app licable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that f orum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 2043 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within t he court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for informati on regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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 n o later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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 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:
6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhanc ement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board's
disposition of allegations of a prohibited pe rsonnel practice described in s ection
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower clai ms by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certa in whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
7
If you submit a petition for judici al review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practi ce, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono repr esentation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | ORFANEL_MATTEO_AT_3443_17_0611_I_1_FINAL_ORDER_1908763.pdf | 2022-03-18 | null | AT-3443 | NP |
4,531 | https://www.mspb.gov/decisions/nonprecedential/SMITH_THURSTON_S_AT_3443_17_0416_I_1_FINAL_ORDER_1908786.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THURSTON S. SMITH,
Appellant,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency. DOCKET NUMBER
AT-3443 -17-0416 -I-1
DATE: March 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ricky E. Wilkins, Esquire, Memphis, Tennessee, for the appellant.
Keta J. Barnes, Nashville, Tennessee, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has petitioned for review of the August 28, 2017 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1; Initial Appeal
File, Tab 9, Initial Decision. For the reasons set forth below, we DISMISS the
appeal as settled.
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
¶2 After the filing of the petition for review, the parties submitted a document
entitled “SETTLEMENT AND COMPROMISE AGREEMENT” signed and dated
by the appellant on January 5, 2018, and by the agency on January 9, 2018. PFR
File, Tab 4. The document provides, among other things, that the appellant
agreed to withdraw the above-captioned appeal in exchange for the promises
made by the agency. 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,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PF R 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 ap peal) is appropriate under these
circumstances, and we accept the settlement agreement into the record for
enforcem ent purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PARTIE S OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either p arty may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issued the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communications between the parties. 5 C.F.R. § 1201.182 (a).
NOTI CE 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 appropria te forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which opti on is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately r eview the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that 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 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. di strict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request wit h the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receiv es this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
claim s of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)( i), (B), (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 Fed eral Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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 inter ested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appe llants before the 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
¶1 | SMITH_THURSTON_S_AT_3443_17_0416_I_1_FINAL_ORDER_1908786.pdf | 2022-03-18 | THURSTON S. SMITH v. DEPARTMENT OF VETERA NS AFFAIRS, MSPB Docket No. AT-3443, March 18, 2022 | AT-3443 | NP |
4,532 | https://www.mspb.gov/decisions/nonprecedential/MOORE_KENNETH_L_DE_0752_15_0552_C_1_ORDER_1908805.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
KENNETH L. MOORE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER
DE-0752 -15-0552 -C-1
DATE: March 18, 2022
THIS ORDER IS NONPRECEDENTIAL1
Kenneth L. Moore , Colorado Springs, Col orado, pro se.
Alex Rivera , Esquire , Denver, Colorado, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
ORDER
¶1 The appellant has filed a petition for review of the compliance initial
decision, which denied his petition for enf orcement for failing to show
noncompliance with the administrative judge’s order to cancel the appellant’s
removal, retroactively restore him to his position, pay him appropriate back pay,
and adjust his benefits. For the reasons discussed below, we GRANT the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administr ative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
appellant’s compliance petition for review. We AFFIRM the compliance initial
decision as to the finding that the appellant is not entitled to back pay or the
restoration of additional annual leave, as MODIFIED to clarify the basis for the
agency’s an nual leave calculations. However, we REVERSE the finding of
compliance as to the appellant’s Federal Employees’ Retireme nt System (FERS)
retirement account and ORDER the agency to file evidence of compliance within
45 days.
BACKGROUND
¶2 The appellant filed an appeal challenging his removal. Moore v. U.S.
Postal Service , MSPB Docket No. DE-0752- 15-0552-I-1, Initial Appeal File
(IAF), Tab 1. The administrative judge reversed the appellant’s removal and
ordered the agency to retroactively restore him to his position, effective August 7,
2015, to pay him appropriate back pay, and to adjust his benefits.2 IAF, Tab 19,
Initial Decision (ID) at 1, 3-4, 13-14. The initial decision became final on
December 30, 2015, after neither party filed a petition for review. ID at 16.
¶3 On December 3 and 14, 2015, the agency mailed the appellant letters
ordering him to return to duty. Moore v. U.S. Postal Service , MSPB Docket
No. DE-0752- 15-0552-C-1, Compliance File (CF), Tab 5 at 11-15. Throughout
December 2015, the appella nt’s supervisor also left him voicemail messages
ordering him to return to duty. Id. at 10. The appellant, however, did not report
and told the agency that he was not ready, willing, and able to work during the
back pay period due to his medical conditio ns. CF, Tab 5 at 137, Tab 10 at 16.
The agency notified him that if he was not ready, willing, and able to work, he
would not be entitled to back pay and that he would not receive any compensation
during that period, unless he used earned annual or sick leave. Id. He
nonetheless declined to buy back the annual leave that the agency had paid him
2 The Back Pay Act applies to the appellant because he is a preference-eligible veteran.
IAF, Tab 7 at 11 ; Moore v. U.S. Postal Service , 83 M.S.P.R. 533 , ¶ 10 (1999).
3
upon his August 7, 2015 removal , or to use his sick leave. CF, Tab 1 at 33,
Tab 10 at 16.
¶4 On April 8, 2016, the appellant filed a petition for enforcement, alle ging
that the agency “took 152 hours of [his] annual leave,” rather th an pay him back
pay, as ordered; did not reinstate him in December 2015 ; and failed to restore his
retirement account . CF, Tab 1 at 28 -29, 33 . The administrative j udge issued an
initia l decision denying the appellant’s petition for enforcement , finding that the
agency was in compliance with the reinstatement and back pay orders.
CF, Tab 13, Compliance Initial Decision (CID) at 1, 6. He found that the
appellant was not entitled to back pay because, upon his own admission, he was
not ready, willing, and able to work, and that the agency fulfilled its obligation to
reinstate him by instructing him to return to duty in December 2015. CID at 2-5.
He further found that the appellant did no t have any annual leave to restore
because the agency had properly paid him for all of it upon his removal and he
declined to repay the money . CID at 5. N either the administrative judge nor the
agency directly addressed the appellant’s claims concerning his retirement
benefits .
¶5 The appellant has filed a petition for review, to which the agency has
submitted a response . Compliance Petition for Review (CPFR) File, Tabs 1, 5.
The Clerk of the Board issued an order seeking evidence regarding the agency’s
recrediting of the appellant’s annual leave. CPFR File, Tab 6. The agency has
filed a response. CPFR File, Tab 7 .
DISCUSSION OF ARGUME NTS ON REVIEW
¶6 The Board has jurisdiction to consider an appellant’s claim of agency
noncompliance with a Board order. Kerr v. National Endowment for the Arts ,
726 F.2d 730 , 733 (Fed. Cir. 1984). An agency bears the burden of proving its
compliance with a Board orde r. Pernell v. Department of Veterans Affairs ,
118 M.S.P.R. 15 , ¶ 7 (2012). The agency’s assertions of compliance must be
4
supported by relevant, material, and c redible evidence in the form of
documentation or affidavits. Id.
The appellant has shown no error in the administrative judge’s finding that the
agency fulfilled its back pay and reinstatement obligations.
¶7 The app ellant continues to argue that the agency denied him back pay in
accordance with the administrative judge’s order. CPFR File, Tab 1 at 13. As
stated by the administrative judge, a n appellant’s back pay award is predicated
upon him being ready, willing, and able to work during the back pay period . CID
at 4-5; see 5 C.F.R. § 550.805 (c)(1) (specifying that a back pay award may not
include any period during which an employee was not ready, willing, and able to
perform his duties b ecause of an incapacitating illness or injury). The agency
provided documentation , wherein the appellant admitted that he was not ready,
willing, and able to work during the period for which back pay was claimed. IAF,
Tab 10 at 16. The appellant’s own a dmissions and medical documentation further
substantiate the agency’s claim. CPFR File, Tab 1 at 2-4, 10; CF, Tab 1 at 9-13.
Although the appellant alleges that the agency improperly instructed him to sign a
back pay worksheet that he did not complete, h e has not explained how this
affected his relief . CPFR File, Tab 1 at 7 , 13. Therefore, this alleged error is not
a basis to grant review. See Forte v. Department of the Navy , 123 M.S.P.R. 124 ,
¶ 9 (2016) (explaining that an appellant seeking reversal of an adverse action
based on a procedural error must prove that the error was likely to have caused
the agency to reach a different conclusion than if there wer e no such error) .
Thus, a s the administrative judge correctly found, the appellant was not entitled
to back pay because he was not ready, willing, and able to work. CID at 5.
¶8 Moreover, t he appellant’s challenge to the administrative judge’s finding
that the agency reinstated him in December 2015 does not provide a basis for
finding otherwise. CID at 2-4; CPFR File, Tab 1 at 4. The appellant claims that
he was not reinstated in December 2015, as he did not resume receiving pay stubs
until January 9, 2016 . CPFR File, Tab 1 at 4. But, he does not rebut the agency’s
5
argument and evidence that it cancelled the removal action; contacted him
multiple times, by letter and telephone in December 2015 , ordering him to return
to duty in his position of record ; and returned him to pay status in January 2016.3
CF, Tab 1 at 42, Tab 5 at 10 -15, 135 . Thus, w e agree with the administrative
judge that the agency reinstated the appellant. CID at 2 -3; see Mann v. Veterans
Administration , 29 M.S.P.R. 271 , 274 -75 (1985) (finding that to be in compliance
with a Board order to reinstate an employee, an agency generally must return him
to his former position). Even if the appellant were not reinstated u ntil he
received his January 9, 2016 pay stub , he has failed to show that he suffered any
loss of pay or benefits because he declined to return to work throughout January
2016 . CPFR File, Tab 1 at 2-4, 10; CF, Tab 1 at 9 -13.
The appe llant has shown no error in the administrative judge’s finding that the
agency complied with its obligations as to his leave balances.
¶9 The appellant also continues to assert that the agency wrongfully took
“152 hours of annual leave,” and that he should no t have to buy it back because
he never used or was paid for that leave.4 CPFR File, Tab 1 at 2. In response to
the Clerk’s order, the agency clarified that the terminal leave payment issued to
the appellant on September 25, 2015, covered the entirety of the annual leave that
he had earned as of his August 7, 2015 removal, or 368.01 hours. CPFR File,
3 On January 28, 2016, the agency issued the appellant a new proposed removal related
to his failure to return to work in December 2015, as instructed. CF, Tab 1 at 4-8. The
appe llant attached to his compliance petition for review the agency’s June 3, 2016
decision to rescind this subsequent proposed removal . CPFR File, Tab 1 at 6. He also
appears to dispute the merits of the subsequent removal. Id. at 7. We n eed not address
that matter here. As the administrative judge correctly stated, if the agency effects the
proposed removal or takes any other chapter 75 adverse action against the appellant, he
may wish to file a separate Board appeal challenging such act ion. CID at 4 .
4 The appellant also alleges that the agency improperly placed him in leave without pay
status, instead of granting him sick leave, prior to the August 7, 2015 effective date of
his removal. CPFR File, Tab 1 at 2-4. We need not address th is claim because the
Board’s authority to make an aggrieved employee whole under the Back Pay Act
extends only to the effective date of the reversed adverse action. Rittgers v.
Department of the Army , 123 M.S.P.R. 31 , ¶ 8 (2015) .
6
Tab 7 at 6 -7. The appellant was not entitled to the additional 152 hours he
references because those hours appear to represent advanced annual leave that he
had not yet earned as of his removal . Id.
¶10 Given that the appellant had been paid out for all 368.01 hours of earned
annual leave , he was required to reimburse the agency for that leave to have it
restored. Id. at 7; see O’Connell v. Department of the Na vy, 73 M.S.P.R. 235,
237-40 (199 7) (observing that an agency properly offset from an appellant’s back
pay award the cash value of the leave the agency paid out to him upon separation
and then recredited on his re instatement ); 5 C.F.R. § 550.805 (e)(iv) , (g)
(instructing an agency to deduct lump sum annual leave payments from a back
pay award and restore the leave to the employee ). But, the appellant declined to
do so. CPFR File, Tab 1 at 2; CID at 5. As such, he had no earned annual leave
at the time of his separation , and he accrued no additional leave during the back
pay period because he was not ready, willing, and able to work, as explained
above. Accordingly , there was no annual leave with which to recredit him.
¶11 In addition , the agency advanced the appellant the correct number of leave
hours upon his reinstatement , although that balance ha s decreased as the appellant
has failed to earn this advanced leave . CPFR File, Tab 7 at 8; CF, Tab 1 at 39,
41-42. Therefore, we discern no error in the administrative judge’s finding that
the agency fulfilled its obligations regarding the appellant’s l eave balances .
The agency has not fully complied with the administrative judge’s order as to the
appellant’s FERS retirement contributions .
¶12 As argued below, the appellant contends on review that the agency has not
recredited him with his FERS retirement co ntributions because his leave and
earning statements show a balance of zero. CPFR File, Tab 1 at 13 -15; CF, Tab 1
at 33. In support, he provided the final pay stub that he received before his
removal, from pay period 20 of 2015, which reflected a FERS re tirement
contribution balance of $ 3,715.17 . CF, Tab 1 at 39 . He also submitted pay stub s
from after his reinstatement, which reflect a FERS retirement contribution
7
balance of “.00.” Id. at 41 -42. The appellant informed the agency that he did not
receiv e an annuity payment or voluntarily withdraw his retirement contributions
during the agency’s processing of his back pay . CF, Tab 10 at 18.
¶13 The agency has not disputed , or otherwise addressed, the appellant’s claims
as to the restoration of his FERS ret irement contributions. CPFR File, Tabs 5, 7;
CF, Tabs 5, 10 -11. Similarly, the administrative judge did not address this
allegation in the compliance initial decision. Thus, we find that the agency has
not complied with the administrative judge’s order. See Gallagher v. Department
of the Army , 59 M.S.P.R. 379 , 384 -85 (1993) (finding that the agency’s failure to
ensure that an appellant’s leave and earning stat ement accurately reflect ed his
retirement contributions constituted noncompliance with the back pay award
provision in a settlement agreement, even though the agency assured the appellant
and the Board that he ha d not lost his retirement contributions ).
¶14 Because we have found the agency in noncompliance, the agency is being
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 enforc ement 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
good 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 understa nd the evidence of
compliance and/or any objections to that evidence. Thereafter, the Board will
issue a final decision fully addressing the appellant’s petition for review of the
compliance initial decision and setting forth the appellant’s further appea l rights
and the right to attorney fees, if applicable.
8
ORDER
¶15 We ORDER the agency to submit to the Clerk of the Board within 45 days
of the date of this decision satisfactory evidence of compliance with this decision.
This evidence shall adhere to the req uirements set forth in 5 C.F.R.
§ 1201.183 (a)(6)(i), including submission of evidence and a narrative statement
of compliance. The agency’s submission must include proof of the amount of
FERS retirement contributions it restored to the appellant and how it arrived at
that figure, including an accounting of any credits or deductions following the
August 7, 2015 removal action. The agency must also provide evidence that the
appellant’s l eave and earning statements accurately reflect his FERS retirement
contributions.
¶16 We ORDER the appellant to cooperate in good faith in the agency’s efforts
to determine the cumulative amount of his FERS retirement contributions and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. The agency must serve all parties with copies of its submission.
¶17 The Board will assign a new docket number to this matter, DE -0752 -15-
0552 -X-1. All subsequent filings should refer t o the new docket number set forth
above and should be faxed to (202) 653 -7130 or mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions may also be made by electronic filing at the MSPB’s e -Appeal site
(https://e -appeal.mspb.gov) in accordance with the Board’s regulation at 5 C.F.R.
§ 1201. 14.
¶18 The appellant may respond to the agency’s evidence of com pliance 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 Boar d may assume that he is satisfied with the agency’s action
and dismiss the petition for enforcement.
9
¶19 The agency is reminded that, if it fails to provide adequate evidence of
compliance, the re sponsible agency official and the agency’s representative may
be required to appear before the General Counsel of the Merit Systems Protection
Board to show cause why the Board should not impose sanctions for the agency’s
noncompliance in this case. 5 C.F.R. § 1201.183 (c). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an employee
during any period that the order has not been com plied with.” 5 U.S.C.
§ 1204 (e)(2)(A).
¶20 This Order does not constitute a final order and is therefore not subject to
judicial review under 5 U.S.C. § 7703 (a)(1). Upon final resolution of the
remaining issues in this petition for enforcement by the Board, a final order shall
be issued which shall be subject to judicial review.
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | MOORE_KENNETH_L_DE_0752_15_0552_C_1_ORDER_1908805.pdf | 2022-03-18 | null | DE-0752 | NP |
4,533 | https://www.mspb.gov/decisions/nonprecedential/DANNELS_CONNIE_DA_315H_17_0087_I_1_FINAL_ORDER_1908814.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
CONNIE DANNELS,
Appellant,
v.
DEPARTMENT OF THE TR EASURY,
Agency.
DOCKET NUMBER
DA-315H -17-0087 -I-1
DATE: March 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Connie Dannels , Austin, Texas, pro se.
Bridgette M. Gibson , Esquire and Teena Mathew Makil , Esquire, Dallas,
Texas, for the agency.
BEFORE
Raymond A. Limon , Vice Chair
Tristan L. Leavitt , Member
FINAL ORDER
¶1 The appellant has petitioned for review of the January 17, 2017 initial
decision in this appeal. Petition for Review (PFR) File, Tab 1 ; Initial Appeal
File, Tab 12, Initial Decision . For the reasons set forth below, we DISMISS the
petition for review as settled.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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 AGREEMENT” signed and dated by the appellant on
April 18, 2018, and by the agency on April 19, 2018. PFR File, Tab 3 at 7. The
document provides, among other things, that the appellant agreed to withdraw
her petition for review in the above -captioned appeal in exchange for the
promises made by the agency. Id. at 5.
¶3 Before dismissing a matter as settled, the Board must decide whether the
parties h ave 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, i ndependent of any
prior finding of Board jurisdiction over the underlying matter being settled).
¶4 Here, we find that the parties have entered into a settlement agreement,
understand its terms, and intend for the agreement to be entered into the record
for enforceme nt by the Board. PFR File, Tab 3 . In addition, we find that the
agreement is lawful on its face and that the parties freely entered into it. Id.
Accordingly, we find that dismissing the petition for review “with prejudice to
refiling” (i.e., the parties normally may not refile this appeal) is appropriate
under these circumstances, and we accept the settlement agreement into the
record for enforcement purposes.
¶5 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 ( 5 C.F.R.
§ 1201.113 ).
3
NOTICE TO THE PART IES OF THEIR
ENFORCEMENT RIGHTS
If the agency or the appellant has not fully carried out the terms of the
agreement, either party may ask the Board to enforce the settlement agreement by
promptly filing a petition for enforcement with the office that issue d the initial
decision on this appeal. The petition should contain specific reasons why the
petitioning party believes that the terms of the settlement agreement have not
been fully carried out, and should include the dates and results of any
communicatio ns between the parties. 5 C.F.R. § 1201.182 (a).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C . § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regar ding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the a pplicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a 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 w hich option is most appropriate in any matter.
4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is availabl e at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposi tion of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
5
receive this decision. 5 U.S.C. § 7703 (b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action 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. di strict courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such request wit h the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representative receiv es this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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
claim s of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)( i), (B), (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 sub mit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit cou rt of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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 ac cessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD:
Washington, D.C. /s/ for
Jennifer Everling
Acting Clerk of the Board | DANNELS_CONNIE_DA_315H_17_0087_I_1_FINAL_ORDER_1908814.pdf | 2022-03-18 | null | DA-315H | NP |
4,534 | https://www.mspb.gov/decisions/nonprecedential/BURKARD_RICHARD_A_AT_0831_17_0057_I_1_FINAL_ORDER_1908831.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
RICHARD A. BURKARD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.
DOCKET NUMBER
AT-0831 -17-0057 -I-1
DATE: March 18, 2022
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard A. Burkard , Fort Myers Beach, Florida, 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 pet ition for review of the February 10, 2017 initial
decision in this appeal. The appellant later decided to withdraw the petition for
review, and submitted letters to that effect. Petition for Review (PFR) File,
Tabs 3-4. The appellant’s April 7, 2017 letter includes a statement signed by 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
agency’s representative, declaring that the agency has no objection to the
withdrawal of the petition for review. PFR File, Tab 4.
¶2 Finding that withdrawal is appropriate under these circumstances, we
DISMISS th e petition for review as withdrawn with prejudice to refiling. The
initial decision of the administrative judge is final. Title 5 of the Code of Federal
Regulations, secti on 1201.113 ( 5 C.F.R. § 1201.113 ).
NOTICE OF APPEAL RIG HTS2
You may obtain review of this final decision. 5 U.S.C. § 7703 (a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703 (b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not 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 read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for mor e information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order 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 mos t appropriate in any matter.
3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the cou rt’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals 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
4
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court ‑appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e -5(f) and 29 U.S.C. § 794a .
Contact information fo r U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternati vely, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702 (b)(1). You must file any such re quest with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702 (b)(1). If you have a representative in this case,
and your representati ve receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you 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
5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have rai sed
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302 (b)(8) or
other protected activities listed in 5 U.S.C. § 2302 (b)(9)(A)(i), (B), (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 f or
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703 (b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal 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.
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 are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | BURKARD_RICHARD_A_AT_0831_17_0057_I_1_FINAL_ORDER_1908831.pdf | 2022-03-18 | null | AT-0831 | NP |
4,535 | https://www.mspb.gov/decisions/nonprecedential/CAMERON_ROBERT_CB_1208_19_0001_U_2_ORDER_ON_STAY_EXTENSION_REQUEST_1588319.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL
EX REL. ROBERT CAMER ON,
Petitioner,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CB-1208 -19-0001 -U-2
DATE: February 15, 2019
THIS STAY ORDER IS N ONPRECEDENTIAL1
Szuwei Co , Esquire, Oakland, California, for the petitioner.
Joseph Manue l Briones and Steven R. Snortland , Esquire, Los Angeles,
California, for the agency.
BEFORE
Mark A. Robbins, Vice Chairman
ORDER ON STAY EXTENSION REQUEST
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)( B), the Office of Special Counsel (OSC)
requests that the Board stay indefinitely the separation of Dr. Robert Cameron
while OSC completes its investigation and legal review of the matter and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administr ative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
determines whether to seek corrective action. For the following reasons , the stay
is extended for a period of 90 days .
BACKGROUND
¶2 On November 27, 2018, OSC filed an initial request for a 45 -day stay of the
separation of Dr. Cameron. Special Counsel ex rel. Robert Cameron v.
Department of Veterans Affairs , MSPB Docket No. CB -1208 -19-0001 -U-1, Stay
Request File, Tab 1. In its request, OSC argued that it had reasonable grounds to
believe that the agency decided to separate Dr. Cameron and coerced his
retirement in reprisal for making protected disclosures under 5 U.S.C.
§ 2302 (b)(8). Id. Based on OSC’s factual allegations, Vice Chairman
Mark A. Robbins granted the request and stayed Dr. Cameron’s separation
through January 13, 2019. Special Counsel ex rel. Robert Cameron v.
Department of Veterans Affairs , MSPB Docket No. CB -1208 -19-0001 -U-1,
Order on Stay Request, ¶ 13 (Nov. 30, 2018). The Board notified the parties that
any request for an extension of the stay must be received by the Clerk of the
Board on or before December 31, 2018, and that any commen ts by the agency on
such a request must be received by the Clerk of the Board on or before
January 7, 2019. Id.
¶3 A partial shutdown of the Federal Government, which included the Board
and OSC , took place from December 22, 2018 , through January 25, 2019 . OSC
asserts that the agency separated Dr. Cameron from Federal service during the
partial shutdown on January 13, 2019. Special Counsel ex rel. Robert Cameron v.
Department of Veterans Affairs , MSPB Docket No. CB -1208 -19-0001 -U-2,
Stay Request File (U -2 SRF), Tab 1 at 3. Subsequently, on February 4, 2019,
OSC filed its present request for an indefinite extension of the stay. Id. at 1-2.
Given the automatic extension of all filing deadlines before the Board during the
partial shutdown, t he Clerk of the B oard deemed the request timely filed and
provided the agency until February 11, 2019, to submit any comment in response .
3
U-2 SRF, Tab 2. The agency has filed a response in opposition to OSC’s request.
U-2 SRF, Tab 4.
ANALYSIS
¶4 The Board may extend the p eriod of a stay for any period that it considers
appropriate.2 5 U.S.C. § 1214 (b)(1)(B); Special Counsel ex rel. Waddell v.
Department of Justice , 105 M.S.P.R. 208 , ¶ 3 (200 7). In evaluating a request for
an extension, the Board will view the record in the light most favorable to OSC
and will grant a stay ex tension request if OSC ’s prohibited personnel practice
claim is not clearly unreasonable. Special Counsel ex rel. Waddell , 105 M.S.P.R.
208, ¶ 3.
¶5 Here, OSC requ ests that the Board extend the stay of Dr. Cameron’s
separation so that it can continue its investigation and, if appropriate, pursue
formal corrective action procedures under 5 U.S.C. § 1214 (b)(2)(B). U -2 SRF,
Tab 1 at 16. OSC asserts that the evidence on which it relied in seeking the
initial stay request , as well as evidence it has obtained since then , including
documentation and interviews with seven additional witnesses , continues to show
reasonable grounds to believe that the agency decided to separate Dr. Cameron
and coerced his retirement in reprisal for making protected disclos ures.
Id. at 5-11. Moreover, OSC avers that a stay is necessary to e nsure that its
investigation will proceed as expeditiously as possible given its claims that , prior
to the Vice Chairman’s grant of the initial 45 -day stay request, the agency
delayed production of documents and evidence relevant to its investigation .
Id. at 4-5, 13 -15. OSC further asserts that a stay is necessary to protect
Dr. Cameron from further harm. Id. at 4-5.
2 Legislation enacted in 2017 allows an individual Board member to extend a stay under
5 U.S.C. § 1214 (b)(1)(B) when , as now, the Board lacks a quorum. See Pub. L.
No. 115-42, 131 Stat. 883 (June 27, 2017).
4
¶6 Based on the assertions made in its extension request, and v iewing the
record in the light most favorable to OSC , an extension of the stay is not clearly
unreasonable to allow OSC time to continue its investigation, attempt a resolution
of this matter , and, if necessary, pursue c orrective action before the Board.
See Special Counsel v. Department of the Treasury , 66 M.S.P.R. 176 , 179 (1995).
¶7 The length of the extension requires a separate determination.
Special Counsel ex rel. Waddell , 105 M.S.P.R. 208 , ¶ 5. In its request, OSC asks
for an indefinite extension, rather than an extension for a certain number of days,
because of the “real and foreseeable risk” that any extension woul d lapse before
OSC had an opportunity to request a further extension given “the approaching
possibility that no Board member will be available to authorize stay extensions.”
U-2 SRF, Tab 1 at 11 -12. The agency opposes the request, claiming , among other
things, that an indefinite stay is unreasonable and unnecessary. U -2 SRF, Tab 4
at 3. The agency requests that the Board issue an extension for no more than
90 days. Id. at 4.
¶8 It is the intent of Congr ess that stays not be extended for prolonged period s
of time. Special Counsel ex rel. Meyers v. Department of Housing & Urban
Development , 111 M.S.P.R. 48, ¶ 17 (2009 ). Moreover, the Board is obligated to
press OSC to present corrective action cases in a timely manner. Id. The Board
generally does not grant an indefinite extension of a stay unless OSC has
petitioned the Board for corrective action. See Special Counsel ex rel. Feilke v.
Department of Defense Dependent Schools , 76 M.S.P.R. 625 , 629 -30 (1997)
(explaining that an indefinite extension of the stay of an employee ’s termination
was not appropriate, in part because OSC had not yet filed a petition for
corrective action) . The record shows that OSC is reasonably continuing its
investigation at this time, and the agency does not object to the extension of the
stay for 90 d ays. In light of these considerations, an extension of 90 days is
appropriate .
5
ORDER
¶9 Pursuant to 5 U.S.C. § 1214 (b)(1)(B), a 90-day extension of the stay is
hereby GRANTED, and it is ORDERED that:
(1) The stay issued on November 30, 201 8, is extended on the terms and
conditions set forth in the Order on Stay Request , through and
including May 18 , 2019 ;
(2) Within 5 working days of this Order, the agency shall submit
evidence to the Clerk of the Boar d showing that it has complied with
this Order;
(3) Any request for an extension of this stay , pursuant to 5 U.S.C.
§ 1214 (b)(1)(B), as amended by Pub. L. No. 115 -42, and 5 C.F.R.
§ 1201.136 (b), must be received by the Clerk of the Board and the
agency, together with any further evidentiary support, on or before
May 3 , 2019 ;3 and
3 If there is no Board member to act on a request for an extension of this stay on May 3 ,
2019 , then the stay automatically will be extended until 45 days after the appointment
of a duly confirmed Board member(s) who can act on the request , at which time the stay
will expire . If such stay is set to expire because of the appointment of a duly confirmed
Board member(s), an y request for an extension of th at stay, pursuant to 5 U.S.C.
§ 1214 (b)(1)(B), as amended by Pub. L. No. 115 -42, and 5 C.F.R. § 1201.136 (b), must
be received by the Clerk of the Board and the agency, together with any further
evidentiary support, no later than 15 days before the expiration of the stay, and any
comments on such a request that the agency wants the Board to consider , pursuant to
5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R. § 1201.136 (b), must be received by the Clerk of
the Board no later than 8 days before the expiration of the st ay.
6
(4) Any comments on such a request that the agency wants the Board to
consider , pursuant to 5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R.
§ 1201.136 (b), must be received by the Clerk of the Board on or
before May 10 , 2019 .
FOR THE BOARD:
Washington, D.C. ______________________________
Jennifer Everling
Acting Clerk of the Board | CAMERON_ROBERT_CB_1208_19_0001_U_2_ORDER_ON_STAY_EXTENSION_REQUEST_1588319.pdf | 2019-02-15 | null | CB-1208 | NP |
4,536 | https://www.mspb.gov/decisions/nonprecedential/CAMERON_ROBERT_CB_1208_19_0001_U_1_STAY_ORDER_1574876.pdf | UNITED STATES OF AME RICA
MERIT SYSTEMS PROTEC TION BOARD
SPECIAL COUNSEL
EX REL. ROBERT CAMER ON,
Petitioner,
v.
DEPARTMENT OF VETERA NS
AFFAIRS,
Agency.
DOCKET NUMBER
CB-1208 -19-0001 -U-1
DATE: November 30, 2018
THIS STAY ORDER IS N ONPRECEDENTIAL1
Szuwei Co , Esquire, Oakland, California, for the petitioner.
Mark Romaneski , Esquire, Phoenix, Arizona, for the agency.
Steven R. Snortland , Esquire, Los Angeles, California, for the agency.
BEFORE
Mark A. Robbins, Vice Chairman
ORDER ON STAY REQUES T
¶1 Pursuant to 5 U.S.C. § 1214 (b)(1)(A), the Office of Special Counsel (OSC)
requests that the Board stay for 45 days the separation of Dr. Robert Cameron
while OSC completes its investigation and legal review of the matter and
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117 (c).
2
determines whether to seek corrective action. For the reasons discussed below,
OSC’s request is GRANTED.
BACKGROUND
¶2 In its November 27, 2018 stay request, OSC alleges that it has reasonable
grounds to believe that the agency decided to separate Dr. Cameron and coerced
his retirement in reprisal for making protected disclosures under 5 U.S.C.
§ 2302 (b)(8). Special Counsel ex rel. Robert Cameron v. Department of Veterans
Affairs , MSPB Docket No. CB -1208 -19-0001 -U-1, Stay Request File (SRF),
Tab 1. In support of its stay request, OSC alleges the facts in the following
paragraphs .2 Id. at 7-23.
¶3 For over 20 years, the agency employed Dr. Cameron under 38 U.S.C.
§ 7405 (a)(1) as a part -time thoracic surgeon at its Greater Los Angeles Healthcare
System (GLA). The agency rated his performance as “outstanding” for the past
several years. As part of his duties, Dr. Cameron performed thoracic surgeries ,
some of which required the insertion of a double -lumen endotracheal tube (DLT)
by an anesthesiologist. On September 6, 2017, and again on February 21, 2018,
life-threatening medical complications arose during thoracic surgeries performed
by Dr. Cameron that required t he insertion of a DLT . Dr. Cameron believed the
complications were caused by either the mistakes or inexperience of the general
anesthesiologists who inserted the DLTs .
¶4 As a result of the second life -threatening complication, on February 24,
2018, Dr. Cam eron sent an email to GLA’s Chief of Anesthesiology and copied
his supervisor , among others . In the email, he criticized GLA’s practice of
assigning inexperienced general anesthesiologists to thoracic surgeries as opposed
to dedicated thoracic anesthesiol ogists and raised the September 6, 2017 and
2 OSC’s recitation of the facts is supported by the declaration of its counsel. SRF,
Tab 1, Attachment A. For pu rposes of ruling on OSC’s request for an init ial stay in this
ex parte proceeding, OSC’s version of the facts is accepted as true. See, e.g., Special
Coun sel v. De partment of the Interior, 62 M.S.P.R. 388 , 390, 392 (1994).
3
February 21, 2018 surgeries , involving nearly fatal complications. He also
asserted that the two incidents were “100% preventable” and “should be
extremely rare.” Id. at 12. He concluded that any case involvin g a DLT “is not
managed acceptably with your current system” and that he could not “look our
Veterans in the eye and tell them that they will be well cared for.” Id. As a
result, he made specific requests that he believed would ameliorate the problem.
¶5 Thereafter, on May 9, 2018, Dr. Cameron sent an email to the Deputy
Director of the Surgical and Perioperative Careline and copied his supervisor , the
Director . Id. at 18. He again raised his concerns regarding GLA’s a nesthesiology
staffing problems and their effects on veterans’ safety during thoracic surgical
procedures . Id. at 19.
¶6 On June 22, 2018, Dr. Cameron’s supervisor gave him a letter , informing
him that his services were “no longer required ” and that his separation would be
effective July 7, 2018.3 Id. at 22. In a follow -up email, his supervisor advised
him that he could let the separation take effect or submit his retirement before the
separation took place. Dr. Cameron asserts that he fe lt that he had no choice but
to retire under these circumstances and, as a result, retired effective July 6, 2018 .
At the time of his separation, he was the only thoracic surgeon employed by
GLA , and he had 27 patients awaiting surgical services. GLA con tinued to
recruit a thoracic surgeon after his separation, including extending , until July 30,
2018, an ex isting vacancy announcement, which initially was intended for a
second thoracic surgeon . Id. at 22 -23.
ANALYSIS
¶7 Under 5 U.S.C. § 1214 (b)(1)(A)(i), OSC may request that any member of
the Merit Systems Protection Board order a stay of any personnel action for
3 As an employee under 38 U.S.C. § 7405 (a)(1) , Dr. Cameron did not have a right to
respond to or otherwise challenge his separation. SRF, Tab 1 at 26; see 38 U.S.C.
§ 714(h)(1)(B).
4
45 days if OSC determines that there are reasonable grounds to believe that the
personnel action was taken, or is to be taken, as a result of a prohibited personnel
practice. Such a request shall be granted unless the Board member determines
that, under the facts and circumstances involved, such a stay would not be
appropriate. 5 U.S.C. § 1214 (b)(1)(A)(ii). OSC’s stay request need only fall
within the range of rationality to be granted, and the facts must be reviewed in the
light most favorable to a finding of reasonable gro unds to believe that a
prohibited personnel practice was (or will be) committed. See Special Counsel ex
rel. Aran v. Department of Homeland Security , 115 M.S.P.R. 6, ¶ 9 (2010).
¶8 To demonstrate a prima facie violation of 5 U.S.C. § 2302 (b)(8), OSC must
demonstrate the following facts : (1) the employee made a protected disclosure;
(2) the official(s) who recommended or took the personnel action had actual or
constructive knowledge of the protected disclosure; (3) a personnel action was
threatened or taken; and (4) the protected disclosu re was a contributing factor in
the personnel action. Id., ¶ 7. A disclosure is protected under 5 U.S.C.
§ 2302 (b)(8) if the individual has a reasonable belief that the information being
discl osed evidences a violation of law, rule, or regulation, gross mismanagement,
a gross waste of funds, an abuse of authority, or a substantial and specific danger
to public health 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
ascertai nable to the employee could reasonably conclude that the actions of the
Government evidence one of these types of wrongdoing. Id. In determining
whether a disclosure evidenced a substantial and specific danger to public health
or safety, it is relevant f or the Board t o consider factors such as the following:
(1) the likelihood of harm resulting from the danger; (2) the imminence of the
potential harm ; and (3) the nature of the potential harm. Chambers v. Department
of the Interior , 515 F.3d 1362 , 1369 (Fed. Cir. 2008).
5
¶9 Viewing the allegations in the light most favorable to OSC, there are
reasonable grounds to believe that Dr. Cameron made disclosures protected under
5 U.S.C. § 2302 (b)(8). Specifically, OSC indicates that Dr. Cameron advised the
GLA’s Chief of Anesthesiology, his supervisor, and his supervisor’s deputy,
amon g others, that GLA’s policy of assigning general anesthesiologists to
complex thoracic surgeries placed GLA patients at risk of serious medical injury .
OSC further indicates that he used the two , life-threatening medical
complications that occurred within the prior 6 -month period as examples to show
the likelihood and imminence of potential harm should general anesthesiologists
continue to be assigned to complex thoracic surgeries. OSC’s assertions, if true,
could lead on e to conclude that Dr. Cameron rea sonably believed that he was
disclosing a substantial and specific danger to public health and safety. See
Parikh v. Department of Veterans Affairs , 116 M.S.P.R . 197 , ¶¶ 15 -17 (2011)
(finding a disclosure protected whe n the appellant reasonably believed that he
disclosed systematic problems of untimely and inadequate patient care that were
likely to result in severe harm ).
¶10 OSC asserts that GLA’s decision to separ ate him from Federal service and
his resulting involuntary retirement are each covered personnel actions under the
Whistleblower Protection Act (WPA) . Although Dr. Cameron retired prior to the
effective date of his separation , an involuntary retirement is tantamount to a
removal and , therefore, constitutes a “personnel action” under 5 U.S.C.
§ 2302 (a)(2)(A)(iii). See Pariseau v. Department of the Air Force , 113 M.S.P.R.
370, ¶ 11 (2010) (holding that an involuntary retirement is equivalent to a forced
removal) ; Cochran v. Department of Veterans Affairs , 67 M.S.P.R. 167 , 174
(1995 ) (finding that the Board had jurisdiction to review the removal of an
agency physician appointed pursuant to title 38 in an individual righ t of action
appeal ). Based on OSC’s asser tions in its stay request, it is within the range of
rationality to believe that the decision to separate Dr. Cameron and his
involuntary retirement constitute personnel actions under the WPA.
6
¶11 Finally, the contributing factor element may be established through the
knowledge/timing test, i.e., that the official taking the personnel action knew of
the protected activity and the personnel action occurred within a period of time
such that a reasonab le person could conclude that the protected activity was a
contributing factor. See 5 U.S.C. § 1221 (e)(1); Mastrullo v. Department of
Labor , 123 M.S.P.R. 110 , ¶ 18 (2015). OSC contends that the appellant’s
supervisor had actual knowledge of both of his disclosures, as he was a recipient
of both emails. OSC also contends that Dr. Cameron’s supervisor, his deputy,
and GLA’s Chief of Anesthesiology met at least once in late March or April 2018 ,
to discuss the subject of his disclosures. OSC further contends that Dr.
Cameron’s supervisor admitted to OSC that he had conversations regarding the
anesthesiol ogy department’s hostility toward Dr. Cameron as a result of his
disclosures. The period of time between the appellant’s first disclosure and the
date his supervisor gave him the separation letter was approximately 4 months.
Based on OSC’s assertions in its stay request, it is within the range of rationality
to believe that the knowledge/timing test has been met here . See Mastrullo ,
123 M.S.P.R. 110 , ¶ 21 (recognizing that a personnel action taken within
approximately 1 to 2 years of an appellant’s protected disclosures satisfies the
knowledge/timing test).
¶12 Given the deference that generally should be afforded to OSC in the context
of an initial stay reque st, and the assertions made in its stay request, there are
reasonable grounds here to believe that the agency decided to separate and
coerced the retirement of Dr. Cameron based on his protected disclosures in
violation of 5 U.S.C. § 2302 (b)(8). Although the effective date of Dr. Cameron ’s
separation already has passed, the Board has authority to stay an action after its
effective date. See 5 U.S.C. § 1214 (b)(1)(A)(i); Special Counsel v. Department
of Transportation , 59 M.S.P.R. 552, 555 (199 3). The lapse of time that has
passed since the ef fective date of the personnel action is a factor to be considered
in determining whether to grant a stay . See Special Counsel v. Department of
7
Transportation , 59 M.S.P.R. at 555. Here , OSC asserts that it has been active in
investigating and seeking corr ective action in this matter during the approximate
6-month period since Dr. Cameron’s separation from the agency. OSC
additionally asserts that granting its request will allow it to investigate
Dr. Cameron’s complaint more fully while alleviating the eco nomic and personal
hardship that he has endured because of his loss of salary and benefits. Under
these circumstances, it is appropriate to grant the requested stay. See Special
Counsel ex rel. Andersen v. Department of Justice , 78 M.S.P.R. 675 , ¶ 4 (1998)
(stating that the purpose of a stay is to maintain the status quo ante and minimize
the consequences of an alleged prohibited personnel practice while OSC and the
agency involved resolve the disputed matter) ; Special Counsel v. Department of
the Navy , 65 M.S.P.R. 346, 347 (1994) (holding that an i nitial stay is designed to
provide OSC time to complete its investigation) .
ORDER
¶13 Based on the foregoing, granting OSC’s stay request would be appropriate.
Accordingly, a 45 -day stay of Dr. Cameron’s separation is GRANTED. The stay
shall be in effect fro m November 30 , 2018, through and including January 13 ,
2019. It is further ORDERED that:
(1) During the pendency of this stay, Dr. Cameron shall be reinstated to
the position he held prior to his separation ;
(2) The agency shall not affect any changes in Dr. Came ron’s duties or
responsibilities that are inconsistent with his salary or grade level, or
impose upon him any requirement that is not required of other
employees of comparable position, salary, or grade level;
(3) Within 5 working days of this Order, the agenc y shall submit
evidence to the Clerk of the Board showing that it has complied with
this Order;
8
(4) Any request for an extension of this stay pursuant to 5 U.S.C.
§ 1214 (b)(1)(B), as amended by Pub. L. No. 115 -42,4 and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board and the
agency, together with any further e videntiary support, on or before
December 31, 2018 ;5 and
(5) Any comments on such a request that the agency wants the Board to
consider pursuant to 5 U.S.C. § 1214 (b)(1)(C) and 5 C.F.R.
§ 1201.136 (b) must be received by the Clerk of the Board on or
before January 7, 2019 .
FOR THE BOARD:
Washington, D.C. ____________________________ __
Jennifer Everling
Acting Clerk of the Board
4 As passed by the House of Representatives on May 25, 2017, passed by the Senate on
June 14, 2017, and signed into law on June 27, 2017.
5 By regulation, any request for an extension of a stay must be received by the Board no
later than 15 days before the expiration date of the stay, and any response by the a gency
must be received no later than 8 days prior to the expiration of the stay. 5 C.F.R.
§ 1201.136 (b). Because these dates fall on Saturdays in both cases, OSC and the
agency have until the following Mondays to submit their pleadings. 5 C.F.R.
§ 1201.23 . | CAMERON_ROBERT_CB_1208_19_0001_U_1_STAY_ORDER_1574876.pdf | 2018-11-30 | null | CB-1208 | NP |
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