id int64 0 4.54k | url stringlengths 86 186 | text stringlengths 92 116k | filename stringlengths 39 139 | date stringclasses 661 values | case_caption stringlengths 74 130 ⌀ | docket_number stringlengths 1 19 ⌀ | rank stringclasses 1 value |
|---|---|---|---|---|---|---|---|
500 | https://www.mspb.gov/decisions/nonprecedential/Vega_MarelynPH-0432-20-0467-I-1__2911927.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARELYN VEGA,
Appellant,
v.
ENVIRONMENTAL PROTECTION
AGENCY,
Agency.DOCKET NUMBER
PH-0432-20-0467-I-1
DATE: September 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Marielena I. Toro , Lynn, Massachusetts, for the appellant.
Elizabeth M. Whitcher , Esquire, Boston, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for failure to prosecute. For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2On September 16, 2020, the appellant filed a timely appeal contesting her
removal. Initial Appeal File (IAF), Tab 1. The appellant registered as an e-filer
and designated her daughter as her representative, who also registered as an
e-filer. Id. at 2-3. On October 16, 2020, the administrative judge held a
scheduled status conference, but neither the appellant nor her daughter called in.
IAF, Tab 9. Accordingly, he issued an order rescheduling the status conference
and warning the appellant that repeated failures to follow Board orders could
result in dismissal for failure to prosecute. Id. On October 21, 2020, the
administrative judge held the rescheduled status conference, and again, neither
the appellant nor her daughter called in. IAF, Tab 10. The administrative judge
issued another order, rescheduling the status conference for the following week
and warning the appellant that repeated failure to follow Board orders could
result in dismissal for failure to prosecute. Id. On October 28, 2020, the
administrative judge held the rescheduled status conference, and again, neither
the appellant nor her daughter called in. IAF, Tab 11. That same day, the
administrative judge issued an initial decision dismissing the appeal with
prejudice as a sanction for the appellant’s failure to prosecute her appeal. IAF,
Tab 12, Initial Decision at 2-3.
¶3The appellant filed a timely petition for review, explaining that she suffers
from a mental disability that affects her ability to understand and address formal
processes or confront difficult realities, and that her symptoms include
disorganized speech or behavior. Petition for Review (PFR) File, Tab 1 at 4. She
further explains that she appointed her daughter to represent her, but that her
daughter had been busy with finding the appellant housing after she was evicted
for the second time within 2 months. Id. The appellant also states that her
daughter claims she did not receive any phone calls or voicemails regarding the
status conferences. Id. Finally, the appellant explains that she could not afford2
legal representation, and she was not aware of the pro bono options set forth in
the initial decision. Id.
¶4The agency responded in opposition to the appellant’s petition for review,
PFR File, Tab 3, and the appellant’s daughter replied, arguing that the appellant’s
removal was improper because the agency never offered her reasonable
accommodation, PFR File, Tab 4 at 3. The appellant’s daughter further explained
that she was overwhelmed with trying to manage various pieces of her mother’s
life, which was in a state of upheaval, and noting that she (the daughter) had been
diagnosed with attention deficit disorder (ADD) on October 20, 2020, and
prescribed medication for the same. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5An administrative judge may impose sanctions against a party as necessary
to serve the ends of justice. 5 C.F.R. § 1201.43. The sanction of dismissal with
prejudice may be imposed if a party fails to prosecute or defend an appeal.
Gordon v. Department of the Air Force , 104 M.S.P.R. 358, ¶ 4 (2006); 5 C.F.R.
§ 1201.43(b). Absent a showing of abuse of discretion, an administrative judge’s
determination regarding sanctions will not be reversed. Gordon, 104 M.S.P.R.
358, ¶ 4. However, an administrative judge should not resort to the imposition of
sanctions unless necessary to serve the ends of justice, and, in the absence of bad
faith or evidence that the appellant intends to abandon her appeal, a timely filed
appeal should not be dismissed for failure to prosecute. Id.; see Chandler v.
Department of the Navy , 87 M.S.P.R. 369, ¶ 6 (2000).
¶6As an initial matter, in some circumstances, the Board will take an
appellant’s pro se status into consideration and be more lenient in the application
of Board rules and procedures. Thurman v. U.S. Postal Service , 2022 MSPB 21,
¶ 24. Although the appellant designated her daughter as her representative, there
is no evidence that her daughter had a legal background or was otherwise more
familiar with Board rules and procedures than the appellant. Accordingly, we3
have taken this into consideration and afforded the appellant the appropriate level
of leniency.
¶7Next, upon review of the evidence, the imposition of the sanction of
dismissal for failure to prosecute is unwarranted. First, the noncompliance was
limited to a period of less than 2 weeks, during which the appellant and her
daughter were coping with the appellant’s mental health condition, the appellant’s
eviction, and the daughter’s diagnosis of ADD. PFR File, Tab 1 at 4, Tab 4 at 3.
The Board has, in other contexts, recognized calamitous events in an appellant’s
personal life as sufficient excuse for noncompliance with Board rules and
procedures. See Cook v. Office of Personnel Management , 31 M.S.P.R. 683, 685
& n.3 (1986) (finding that a series of unfortunate events in the appellant’s life,
including deaths of his mother and stepfather, caring for his mother prior to her
death from cancer, caring for his minor daughter who suffered from severe
juvenile rheumatoid arthritis, and his own medical problems warranted waiver of
the time limit); see also Cardinali v. Department of the Army , 43 M.S.P.R. 414,
415 (1990) (finding that serious medical problems constitute good cause for a
delay in filing). Therefore, we see no reason not to apply the same logic here and
find that the appellant’s noncompliance is excused given the circumstances.
¶8Furthermore, we discern no evidence that the appellant’s noncompliance
was the result of bad faith or an intention to abandon her appeal. Neither the
appellant nor her daughter appear to have been aware of the scheduled status
conferences. PFR File, Tab 1 at 4, Tab 4 at 3. Although it is the responsibility of
the appellant to keep track of her appeal, the administrative judge nevertheless
should have taken steps beyond merely issuing orders through the Board’s
e-appeal system before imposing such a severe sanction. See MSPB Judge’s
Handbook, ch. 4, § 13(a) (explaining that, if an appellant or her representative
fail to appear for a scheduled hearing, “[t]he AJ should try to call the appellant”).
Additionally, the appellant filed both a timely Board appeal and a timely petition
for review, indicating not only that she had not abandoned her appeal, but that she4
can adhere to the administrative judge’s orders in the future. IAF, Tab 1; PFR
File, Tab 1.
¶9In conclusion, we find that dismissal for failure to prosecute is too severe a
sanction in light of the circumstances here and remand this appeal for further
adjudication. We note, however, that appellants are expected to comply with all
orders issued by the Board’s administrative judge. Mendoza v. Merit Systems
Protection Board , 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). Therefore, on
remand, the appellant must be more diligent in keeping track of her appeal and
must comply with the administrative judge’s orders to avoid the imposition of
sanctions.
ORDER
¶10For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Vega_MarelynPH-0432-20-0467-I-1__2911927.pdf | 2024-09-17 | MARELYN VEGA v. ENVIRONMENTAL PROTECTION AGENCY, MSPB Docket No. PH-0432-20-0467-I-1, September 17, 2024 | PH-0432-20-0467-I-1 | NP |
501 | https://www.mspb.gov/decisions/nonprecedential/Simon_FeliciaDA-0752-21-0286-I-1__2912297.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FELICIA SIMON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-21-0286-I-1
DATE: September 17, 2024
THIS ORDER IS NONPRECEDENTIAL1
Felicia Simon , Converse, Texas, pro se.
Casey W. Hinson , Esquire, Falls Church, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as prematurely filed. For the reasons set forth
below, we GRANT the petition for review, VACATE the initial decision, and
REMAND this appeal to the Dallas Regional Office for further adjudication.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
DISCUSSION OF ARGUMENTS ON REVIEW
In a May 18, 2021 email, the appellant explicitly told the agency’s equal
employment opportunity (EEO) office that she wished to amend her existing
complaint to include her May 12, 2021 removal. Initial Appeal File (IAF), Tab 5
at 27-31, Tab 18 at 7. By a letter dated May 25, 2021, the agency’s EEO office
accepted the appellant’s amendment.2 IAF, Tab 5 at 24. Subsequently, on
May 31, 2021, the appellant filed the instant Board appeal challenging her
removal, IAF, Tab 1, which the administrative judge dismissed as prematurely
filed, IAF, Tab 19, Initial Decision (ID). When, as here, an employee has first
timely filed a formal complaint of discrimination with the agency, an appeal to
the Board may be filed within 30 days after the employee receives a final agency
decision (FAD) on the discrimination issue. 5 C.F.R. § 1201.154(b)(1).
Alternatively, if the agency has not resolved the employee’s discrimination claim
or issued its FAD within 120 days, an appellant may file an appeal with the Board
anytime thereafter. 5 C.F.R. § 1201.154(b)(2). Therefore, because the appellant
filed her Board appeal before either the issuance of the agency’s FAD, or the
passage of 120 days, the administrative judge correctly found that the appellant’s
Board appeal was premature. ID at 2-3; see Miranne v. Department of the Navy,
121 M.S.P.R. 235, ¶ 13 (2014) (explaining that an appellant who first filed a
timely formal complaint of discrimination is precluded from filing a Board appeal
challenging the same agency action prior to either the issuance of the agency’s
FAD or the passage of 120 days).
However, the Board’s practice is to adjudicate an appeal that was
premature when filed but ripens while pending before the Board. Bent v.
Department of State , 123 M.S.P.R. 304, ¶ 6 (2016); Augustine v. Department of
Justice, 100 M.S.P.R. 156, ¶ 9 (2005). This instant appeal ripened on
2 To the extent the appellant alleged that she did not intend to amend her EEO
complaint, the appellant did not object to the agency’s letter accepting the amendment
of her complaint to include a removal claim, despite being afforded the opportunity to
do so. IAF, Tab 5 at 24.2
September 15, 2021, i.e., 120 days after the appellant’s May 18, 2021 amendment
of her EEO complaint. Therefore, because 120 days have passed, and there is no
indication that the agency has issued the appellant a FAD,3 the appeal is now ripe
for adjudication. See 5 C.F.R. § 1201.154(b)(2). Thus, we find that it is
appropriate to remand the case to the regional office.4 Kozak v. Department of
Health & Human Services , 90 M.S.P.R. 396, ¶¶ 7-8 (2001); see Simnitt v.
Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 9 (2010) (remanding an
individual right of action (IRA) appeal that, although premature when initially
filed, ripened while pending before the Board).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
3 The appellant indicated that her EEO complaint was still pending in her petition for
review. PFR File, Tab 1 at 2.
4 In her petition for review, the appellant argues the merits of her removal and provides
a copy of a Department of Defense instruction, which she asserts is central to her
appeal. PFR File, Tab 1 at 2-24. Because the instruction is not material to the
timeliness issue before us, we decline to consider it further. On remand, the appellant
may present any arguments and evidence relating to the merits of her appeal consistent
with the administrative judge’s instructions and the Board’s regulations. 3 | Simon_FeliciaDA-0752-21-0286-I-1__2912297.pdf | 2024-09-17 | FELICIA SIMON v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-21-0286-I-1, September 17, 2024 | DA-0752-21-0286-I-1 | NP |
502 | https://www.mspb.gov/decisions/nonprecedential/Baldwin_Clarence_E_DC-0752-16-0464-R-1__2910290.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLARENCE EDWARD BALDWIN,
JR.,
Appellant,
v.
SMALL BUSINESS
ADMINISTRATION,
Agency.DOCKET NUMBER
DC-0752-16-0464-R-1
DATE: September 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clarence Edward Baldwin, Jr. , Temple Hills, Maryland, pro se.
Claudine Landry , Esquire, and Obed Morales , Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a request to reopen his involuntary resignation
appeal, which was dismissed for lack of jurisdiction. For the reasons set forth
below, we DENY the appellant’s request to reopen.
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).
The appellant previously filed a Board appeal, challenging his alleged
involuntary resignation. Baldwin v. Small Business Administration , Docket
No. DC-0752-16-0464-I-1, Initial Appeal File (IAF), Tab 1. On May 16, 2016,
the administrative judge issued an initial decision, dismissing the appeal for lack
of jurisdiction, finding that the appellant had failed to make a nonfrivolous
allegation that his resignation was involuntary. IAF, Tab 12, Initial Decision
at 3-4. In a final Board order dated September 29, 2016, the Board affirmed the
initial decision, finding that the appellant was not an employee with Board appeal
rights under chapter 75 and agreeing with the administrative judge that he had
failed to nonfrivolously allege that his resignation was involuntary. Baldwin v.
Small Business Administration , MSPB Docket No. DC-0752-16-0464-I-1, Final
Order (Sept. 29, 2016). The appellant sought review of the Board’s final decision
to the U.S. Court of Appeals for the Federal Circuit, which dismissed his petition
for review as untimely. Baldwin v. Small Business Administration ,
No. 2017-1300 (Fed. Cir. Feb. 23, 2017).
On December 18, 2019, the appellant filed three submissions with the
Board’s Washington Regional Office under the docket number associated with his
initial appeal of his alleged involuntary resignation. Baldwin v. Small Business
Administration, MSPB Docket No. DC-0752-16-0464-R-1, Request to Reopen
File (RRF), Tabs 1-3. Because the appellant filed these submissions alleging new
evidence approximately 3 years after the Board’s final decision regarding his
involuntary resignation appeal, we treat them as a request to reopen.
The Board has authority to reopen, on its own motion, appeals in which it
has rendered a final decision. 5 U.S.C. § 7701(e)(1)(B); 5 C.F.R. § 1201.118.
The Board will exercise its discretion to reopen an appeal only in unusual or
extraordinary circumstances, such as an intervening event or the discovery of a
misrepresentation or fraud. Mitchell v. Department of Commerce , 100 M.S.P.R.
415, ¶ 9 (2005). Further, the Board will reopen an appeal only if the appellant
has exercised due diligence and presented the request to reopen in a timely2
manner, generally measured in weeks. See Keys v. Office of Personnel
Management, 113 M.S.P.R. 173, ¶ 8 (2010).
For the following reasons, we find that the appellant has not exercised due
diligence regarding his request to reopen his appeal. He asserts that the agency
issued a corrected Standard Form 50 (SF-50) in April 2019, changing his tenure
to “permanent.” RRF, Tab 1 at 6. However, most of the documents that he
submits predate the Board’s September 29, 2016 Final Order. RRF, Tab 3 at 8-9,
11-16. He provides no explanation why, if he received the corrected personnel
document in April 2019, he waited approximately 8 months to file his submission
with the Board. RRF, Tab 1 at 6; see Keys, 113 M.S.P.R. 173, ¶ 8.
Further, the appellant does not allege that the agency’s original
appointment and resignation SF-50s showing a “conditional” tenure were the
result of unusual or extraordinary circumstances. RRF, Tab 1 at 6, Tab 3 at 4-6;
see Mitchell, 100 M.S.P.R. 415, ¶ 9. Instead, he argues the agency should have
corrected his “misclassification” sooner. RRF, Tab 3 at 5. He submits a
March 2018 email correspondence with an agency Human Resources professional
that reflects that his conditional tenure was due to his failure to provide
documentation of his prior Federal service during his employment with the
agency. RRF, Tab 3 at 17-18.
In any event, even if we were to reopen the appeal to consider the
appellant’s new evidence, it is not of sufficient weight to warrant an outcome
different from that of the Board’s final order. Cf. Parkinson v. U.S. Postal
Service, 58 M.S.P.R. 393, 397 (1993) (observing that while reopening may be
appropriate, in the interests of justice, when the evidence is of such weight as to
warrant a different outcome, the appellant failed to provide such evidence),
aff’d per curiam, 31 F.3d 1177 (Fed. Cir. 1994). Regardless of the change in the
appellant’s tenure code on his SF-50 from “conditional” to “permanent,” he was
still required to show that he satisfied the definition of a competitive service
“employee” with Board appeal rights under 5 U.S.C. § 7511(a)(1)(A).3
See Walker v. Department of the Army , 119 M.S.P.R. 391, ¶ 5 (2013).
An appointee with career tenure may still be considered probationary.
5 C.F.R. §§ 315.201(a), 315.801(a). Because the appellant held an appointment
in the competitive service, in order to have chapter 75 appeal rights he must
either not have been “serving a probationary or trial period under an initial
appointment,” or have “completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less.” 5 U.S.C. § 7511(a)
(1)(A).
It is undisputed that the appellant resigned less than 1 year after his
appointment. RRF, Tab 2 at 5-7. An appellant who has not served a full year
under his appointment can show that he has completed the probationary period,
and so is no longer a probationer, by tacking on prior service if: (1) the prior
service was rendered immediately preceding the probationary appointment;
(2) it was performed in the same agency; (3) it was performed in the same line of
work; and (4) it was completed with no more than one break in service of less
than 30 days. Hurston v. Department of the Army , 113 M.S.P.R. 34, ¶ 9 (2010);
5 C.F.R. § 315.802(b). The appellant asserted on review that he had
“over 16 years of Government service” with the District of Columbia from 1987
to 1999 and the U.S. Army from 1984 to 1987, 1990 to 1991, and 2000 to 2002.
Baldwin v. Small Business Administration , MSPB Docket No. DC-0752-16-0464-
I-1, Petition for Review File, Tab 5 at 6. Therefore, the service identified by the
appellant predated his appointment at issue in the present appeal by 13 years and
does not count towards the completion of his probationary period. See Hurston,
113 M.S.P.R. 34, ¶ 9. Moreover, the appellant did not allege at any point on
appeal or in his request to reopen that he had 1 year of current continuous service
at the time of his resignation. See 5 U.S.C. § 7511(a)(1)(A). Thus, even
considering the evidence submitted with his motion to reopen, the appellant has
not shown that he met the definition of an “employee” with chapter 75 Board
appeal rights. 4
Accordingly, we deny the appellant’s request to reopen the appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Baldwin_Clarence_E_DC-0752-16-0464-R-1__2910290.pdf | 2024-09-16 | null | DC-0752-16-0464-R-1 | NP |
503 | https://www.mspb.gov/decisions/nonprecedential/Gregory_Donna_J_PH-0845-21-0210-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA J. GREGORY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0845-21-0210-I-1
DATE: September 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donna J. Gregory , Wilbraham, Massachusetts, pro se.
Karla W. Yeakle , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of the March 30, 2021 reconsideration decision of the Office
of Personnel Management (OPM) regarding an overpayment for lack of
jurisdiction. On petition for review, the appellant argues that an OPM
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
representative has not returned her calls and expresses frustration with the delay
in the processing of her appeal. 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 appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 Although the record does not contain an official document memorializing OPM’s
rescission of the March 30, 2021 reconsideration decision, the appellant has not
disputed that it did so. PFR File, Tab 1. Accordingly, we have accepted OPM’s
assertion that it rescinded the reconsideration decision. Initial Appeal File (IAF),
Tab 9. If OPM completely rescinds a reconsideration decision, the Board no longer
retains jurisdiction over the appeal in which that reconsideration decision was at issue,
and the appeal must be dismissed. Glasgow v. Office of Personnel Management ,
103 M.S.P.R. 531, ¶ 5 (2006). Thus, because OPM rescinded the reconsideration
decision, we do not have jurisdiction over this appeal. IAF, Tab 9; IAF, Tab 10, Initial
Decision. However, upon receipt of the new reconsideration decision from OPM, the
appellant may file another appeal with the appropriate regional office consistent with
the Board’s regulations.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Gregory_Donna_J_PH-0845-21-0210-I-1_Final_Order.pdf | 2024-09-16 | DONNA J. GREGORY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0845-21-0210-I-1, September 16, 2024 | PH-0845-21-0210-I-1 | NP |
504 | https://www.mspb.gov/decisions/nonprecedential/Adams_Kenton_L_SF-0752-18-0010-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENTON L. ADAMS,
Appellant,
v.
GENERAL SERVICES
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-0752-18-0010-I-1
DATE: September 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Garvey , San Francisco, California, for the appellant.
Deborah Finch and Keaton Norquist , San Francisco, California, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal for excessive absence. For the reasons discussed below, we
GRANT the appellant’s petition for review, REVERSE the administrative judge’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
conclusion sustaining the agency’s charge, VACATE the administrative judge’s
nexus and penalty analyses, and except as expressly MODIFIED to supplement
the discussion of the appellant’s affirmative defenses, AFFIRM the remainder of
the initial decision. The appellant’s removal is NOT SUSTAINED.
BACKGROUND
¶2The following facts are undisputed. The appellant was a GS-12 Realty
Specialist for the agency. Initial Appeal File (IAF), Tab 8 at 46. On February 16,
2016, the appellant began an extended period of absence for medical reasons;
apart from a brief return to work in early May 2016, he was continually absent
through the rest of the calendar year, and there is no evidence that he ever
returned to duty. IAF, Tab 7 at 8-56, Tab 8 at 59-64. On October 3, 2016, the
appellant exhausted his accrued leave, and the agency began carrying him in
absent without leave (AWOL) status. Tab 7 at 52-56, Tab 8 at 61.
¶3On December 5, 2016, the agency proposed the appellant’s removal based
on a charge of “excessive absence,” noting that the appellant had “been in a sick
leave, annual leave, or AWOL status for a total of over 1000 hours” during the
previous 10 months. IAF, Tab 8 at 59-64. After the appellant responded, the
deciding official issued a decision sustaining the charge and removing the
appellant effective January 18, 2017. Id. at 46-57.
¶4The appellant filed a Board appeal contesting the merits of the removal and
raising affirmative defenses of discrimination and retaliation under Title VII, the
Rehabilitation Act, the Age Discrimination in Employment Act (ADEA), and the
Whistleblower Protection Act. IAF, Tab 1, Tab 16 at 3. He waived his right to a
hearing. IAF, Tab 1 at 1.
¶5After the close of the record, the administrative judge issued an initial
decision sustaining the removal. IAF, Tab 18, Initial Decision (ID). He found
that the agency proved its charge and established that the appellant’s removal2
promoted the efficiency of the service, and that the appellant did not prove any of
his affirmative defenses. ID at 3-28.
¶6The appellant has filed a petition for review challenging the administrative
judge’s thoroughness and partiality. Petition for Review (PFR) File, Tab 1. The
agency has filed a response. PFR File, Tab 3.
ANALYSIS
¶7Having considered the appellant’s arguments on review, we find that they
provide no basis to disturb the initial decision. The appellant speculates that the
administrative judge did not read every word of every document in the record, but
he has not identified any particular piece of material evidence that the
administrative judge overlooked. PFR File, Tab 1 at 1; see 5 C.F.R.
§ 1201.115(a). Nor is the fact that the administrative judge ruled against the
appellant in this case, or other appellants in other cases, sufficient to establish
that he was biased. PFR File, Tab 1 at 1-2; see Thompson v. Department of the
Army, 122 M.S.P.R. 372, ¶ 29 (2015). Nevertheless, the Board reserves the
authority to consider any issue in an appeal before it, 5 C.F.R. § 1201.115(e), and
in light of developments in the case law after the initial decision was issued, we
find it appropriate to revisit the merits of the case.
¶8As a general rule, an agency may not take an adverse action based on an
employee’s use of approved leave. Coombs v. Social Security Administration ,
91 M.S.P.R. 148, ¶ 12 (2002). However, an exception exists when the following
criteria are met: (1) the employee was absent for compelling reasons beyond his
control so that agency approval or disapproval of leave was immaterial because he
could not be on the job; (2) the absences continued beyond a reasonable time, and
the agency warned the employee that an adverse action could be taken unless he
became available for duty on a regular, full-time or part-time basis; and (3) the
agency showed that the position needed to be filled by an employee available for
duty on a regular, full-time or part-time basis. Cook v. Department of the Army ,3
18 M.S.P.R. 610, 611-12 (1984). This exception is applicable only under unusual
circumstances, such as when the employee is unable to return to duty because of
the continuing effects of illness or injury. Id.
¶9In this case, the administrative judge found that the appellant was absent for
compelling reasons beyond his control, the absences continued beyond a
reasonable time, the agency warned him that he could be disciplined if he did not
return to duty, and the Realty Specialist position needed to be filled by an
employee available for duty on a regular full-time basis. ID at 4. These findings
are generally supported by the record, and the appellant does not challenge them
on review. However, there is a facet of the agency’s case that the administrative
judge did not address and that compels a different outcome for the appeal.
Specifically, there are certain categories of absence, namely AWOL, leave
covered under the Family and Medical Leave Act of 1993, and leave taken prior
to being warned about possible discipline, that cannot be used to support a charge
of excessive absence. Williams v. Department of Commerce , 2024 MSPB 8, ¶ 6;
Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 32 (2015), overruled in
part by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-25.
¶10In this case, the agency first warned the appellant on October 11, 2016 that
he could face removal unless he became available for duty on a regular, full-time
basis. ID at 4; IAF, Tab 7 at 30-32. Therefore, none of the appellant’s absences
prior to that date can be used to support the charge. See Williams, 2024 MSPB 8,
¶ 6. As for the appellant’s absences after the October 11, 2016 warning, the
record shows that none of them were approved and that the appellant was in
AWOL status the entire time. IAF, Tab 7 at 52-56, Tab 8 at 61. Therefore, none
of the absences that the agency identified in its proposal notice can be used to4
support the charge, and the charge cannot be sustained.2 See Savage,
122 M.S.P.R. 612, ¶¶ 31-32.
¶11Because the agency’s failure to prove its charge may have implications for
the appellant’s affirmative defenses, we have reviewed the administrative judge’s
rulings on those, as well. In particular, an agency’s failure to prove its charge
may indicate that the charge was pretext for discrimination or retaliation. See,
e.g., Elder v. Department of the Air Force , 124 M.S.P.R. 12, ¶ 43 (2016); Goins
v. U.S. Postal Service , EEOC Appeal No. 01861764, 1987 WL 768555, at *4-*5
(July 21, 1987).
¶12There are multiple methods of proving an affirmative defense of
discrimination under Title VII or the ADEA, and an appellant may use any
relevant evidence to support his claim, but whatever method of proof the
appellant chooses, he must show that discrimination was at least a motivating
factor in the action under appeal. Pridgen, 2022 MSPB 31, ¶¶ 20-24. In the
absence of direct evidence, the most common way of proving a discrimination
claim is under the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). Under McDonnell Douglas , the appellant
must first establish a prima facie case of discrimination by showing that (1) he is
a member of a protected class, (2) he suffered an adverse employment action, and
(3) the unfavorable action gives rise to an inference of discrimination. Wilson v.
Small Business Administration , 2024 MSPB 3, ¶ 16. Once the appellant has made
out a prima facie case, the burden shifts to the agency to articulate a
nondiscriminatory explanation for the action. Id, ¶ 17. If the agency meets this
burden, the burden shifts back to the appellant to show that the agency’s reason is
2 The agency could, perhaps, have taken an adverse action against the appellant based
on a charge of AWOL. See generally Wilson v. Small Business Administration ,
2024 MSPB 8, ¶¶ 7-8 (setting forth the elements of an AWOL charge). However, the
Board must adjudicate an appeal solely on the grounds invoked by the agency and may
not substitute what it considers to be a more appropriate charge. O’Keefe v. U.S. Postal
Service, 318 F.3d 1310, 1315 (Fed. Cir. 2002).5
pretextual or that it was more likely than not that the agency was motivated by
discrimination. Id.
¶13In this case, the administrative judge detailed the evidence and allegations
that the appellant submitted in support of his ADEA and Title VII discrimination
claims, but he found that none of this evidence tended to show that the appellant’s
removal was motivated by discrimination based on age, race, sex, color, religion,
or national origin. ID at 8-12. We agree with these findings, and we further find
that the agency’s failure to prove its charge does not warrant an inference that the
officials who removed the appellant were motivated by any type of prohibited
discrimination. An agency’s failure to prove its charge does not necessarily mean
that it lacked a legitimate, nondiscriminatory reason for taking action against an
employee. See Carter v. Small Business Administration , 61 M.S.P.R. 656, 666
(1994). The appellant’s lengthy absence from duty with no foreseeable end
clearly provided such a reason. See Bentley v. U.S. Postal Service , 20 M.S.P.R.
208, 210 (1984) (“There is no question but that an employee’s absence for which
no foreseeable end is in sight is a burden which no employer can efficiently
endure.”). Considering the undisputed facts of this case and the context of the
removal action, we think that the agency’s failure to prove its charge is better
attributed to a misunderstanding of civil service law than it is to pretext.
¶14To prove an affirmative defense of disability discrimination under either a
disparate treatment or reasonable accommodation theory, the appellant must
show, among other things, that he is a qualified individual with a disability. Haas
v. Department of Homeland Security , 2022 MSPB 36, ¶ 28; see 42 U.S.C.
§ 12112(a), (b)(5). A qualified individual with a disability is one who can
“perform the essential functions of the . . . position that such individual holds or
desires” with or without reasonable accommodation. 42 U.S.C. § 12111(8);
29 C.F.R. § 1630.2(m).
¶15In this case, the administrative judge found that the appellant was not a
qualified individual with a disability because he could not perform the essential6
functions of his position with or without reasonable accommodation. ID at 17.
Specifically, the appellant did not show that, if granted more leave, he could
resume working in his position in the foreseeable future, and the appellant did not
otherwise articulate an accommodation that would allow him to return to duty and
perform the essential functions of his position. ID at 18. We also observe,
although not specifically addressed by the administrative judge, that the appellant
did not express that he desired to work in a different position. IAF, Tab 7
at 30-32, Tab 8 at 53-57. Thus, we agree with the administrative judge that the
appellant failed to demonstrate that he was a qualified individual with a
disability. ID at 17-18. Because the appellant has not shown that he is a
qualified individual with a disability, he cannot prevail on his disability
discrimination claims under either a reasonable accommodation theory or a
disparate treatment theory. See Haas, 2022 MSPB 36, ¶ 30.
¶16The same evidentiary frameworks for claims of disparate treatment
discrimination apply to affirmative defenses of retaliation for protected EEO
activity. Pridgen, 2022 MSPB 31, ¶ 30. However, the standard of causation may
differ depending on the specific type of EEO activity at issue. To prove an
affirmative defense of retaliation for activity protected under Title VII or the
ADEA, an appellant must show that retaliation was at least a motivating factor in
the agency’s action. Id., ¶¶ 30-31; Nita H. v. Department of the Interior , EEOC
Petition No. 0320110050, 2014 WL 3788011, at *10 n.6 (July 16, 2014). To
prove an affirmative defense of retaliation for activity protected by the
Rehabilitation Act, the appellant must show that retaliation was a but-for cause of
the action. Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 32; Pridgen,
2022 MSPB 31, ¶¶ 44-47.
¶17It is not clear from the record whether the appellant’s prior EEO activity
was based on Title VII, the ADEA, or on the Rehabilitation Act. However, the
issue is ultimately immaterial because we agree with the administrative judge that
the appellant did not prove that his EEO activity was a motivating factor in his7
removal. ID at 8-12; see Williams, 2024 MSPB 8, ¶ 17 n.7 (“The administrative
judge’s finding that the appellant failed to prove motivating factor causation
necessarily means that he failed to prove but-for causation.”). Apart from
showing that the proposing and deciding officials were aware of his prior EEO
activity, the appellant proffered no evidence that would support his claim of
retaliation. Under the circumstances of this case, the mere fact that the appellant
engaged in EEO activity of which the responsible management officials were
aware is insufficient to establish that retaliation was a motivating factor in the
removal. See Carter v. Department of the Army , EEOC Appeal No. 0120061789,
2007 WL 1320653, at *3 (Apr. 27, 2007).
¶18To prove an affirmative defense of retaliation for protected whistleblowing,
the appellant must show that he made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or participated in protected activity under 5 U.S.C. § 2302(b)(9)(A)
(i), (B), (C), or (D) and that the disclosure or activity was a contributing factor in
the action under appeal. Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 12
(2015). If the appellant establishes a prima facie case of whistleblowing reprisal,
then the burden of persuasion shifts to the agency to show by clear and
convincing evidence that it would have taken the same personnel action absent
any protected activity. Id.
¶19The administrative judge found that the appellant proved his case in chief
by showing that he made two protected disclosures that, under the
knowledge/timing test of 5 U.S.C. § 1221(e), were contributing factors in his
removal. ID at 20-23. The appellant’s first disclosure concerned a breach of
computer security protocol; the appellant disclosed that his supervisor provided
him and a coworker the supervisor’s own username and password to use in
accessing Government databases. IAF, Tab 1 at 21, Tab 8 at 54-55. The
appellant’s second disclosure was to his congressional representative and
concerned the agency’s failure to provide him a reasonable accommodation. IAF,
Tab 7 at 4-6, Tab 8 at 55. We agree with the administrative judge that this first8
disclosure was protected under 5 U.S.C. § 2302(b)(8) and that the appellant
therefore met his initial burden of proving his whistleblower reprisal defense.
However, the appellant’s disclosure concerning the agency’s failure to provide
him a reasonable accommodation is protected under the Rehabilitation Act, so it
is not also protected under 5 U.S.C. § 2302(b)(8).3 See McCray v. Department of
the Army, 2023 MSPB 10, ¶¶ 19-22. Nor do we find that this disclosure falls
within any of the categories of activity protected under 5 U.S.C. § 2302(b)(9).
¶20Although the appellant showed that he made a protected disclosure that was
a contributing factor in his removal, considering the factors set forth in Carr v.
Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999), the
administrative judge found that the agency proved by clear and convincing
evidence that it would have removed him regardless. ID at 23-25. We agree with
the administrative judge’s analysis for the most part. As for the strength of the
agency’s evidence in support of its action, we find that it is somewhat undercut
by its failure to prove the charge. However, as explained above, the agency’s
failure to prove its charge has more to do with it selecting the wrong charge than
it does with the lack of a legitimate nonretaliatory reason for pursuing an adverse
action. Supra ¶¶ 9 n.2, 12. We also agree with the administrative judge that the
officials who influenced the removal action had, at most, a slight institutional
motive to retaliate. ID at 24-25; see Whitmore v. Department of Labor , 680 F.3d
1353, 1370-71 (Fed. Cir. 2012). However, we think that the most significant
factor in this case is the agency’s treatment of similarly situated individuals,
whom the agency consistently separates from service when long-term illness or
injury prevents them from returning to work. IAF, Tab 7 at 75, Tab 8 at 58.
Even if these employees normally separate by retirement, they separate
nonetheless, and we agree with the administrative judge that there is no evidence
3 We have considered this second disclosure in the context of the appellant’s affirmative
defense of EEO reprisal. For the reasons explained above, we find that he has not
shown that this disclosure was a but-for cause of his removal. Supra ¶¶ 15-16.9
that the agency hindered the appellant from retiring in lieu of removal. ID at 25;
IAF, Tab 1 at 40-52.
ORDER
¶21We ORDER the agency to cancel the appellant’s removal and restore him to
duty, retroactive to January 18, 2017. 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.
¶22We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶23We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶24No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).10
¶25For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.11
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review
of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your
claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.12
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any13
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s14
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 15
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.16
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630. | Adams_Kenton_L_SF-0752-18-0010-I-1_Final_Order.pdf | 2024-09-16 | KENTON L. ADAMS v. GENERAL SERVICES ADMINISTRATION, MSPB Docket No. SF-0752-18-0010-I-1, September 16, 2024 | SF-0752-18-0010-I-1 | NP |
505 | https://www.mspb.gov/decisions/nonprecedential/Pittore_MaritzaDE-1221-21-0015-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARITZA PITTORE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-21-0015-W-1
DATE: September 16, 2024
THIS ORDER IS NONPRECEDENTIAL1
Maritza Pittore , Huntington, West Virginia, pro se.
Anita Varma , Esquire, Phoenix, Arizona, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member *
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision in her
individual right of action (IRA) appeal, which granted in part her request for
corrective action. For the reasons discussed below, we GRANT the appellant’s
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review. We AFFIRM the administrative judge’s findings that the
appellant engaged in protected activity with regard to her November 2019
communication with the Office of Inspector General (OIG), that this activity was
a contributing factor in the agency’s decision to lower her performance rating,
and that the agency failed to prove by clear and convincing evidence that it would
have taken such action in the absence of her whistleblowing activity. We
MODIFY the initial decision to find that the appellant established that her
2018 participation in the investigation of the agency’s OIG was a contributing
factor in the agency’s decision to issue her a letter of reprimand, but agree with
the administrative judge’s decision to deny corrective action because the agency
proved by clear and convincing evidence that it would have issued the reprimand
regardless of the appellant’s OIG activity. Finally, we VACATE the
administrative judge’s finding that the Board does not have jurisdiction over the
appellant’s 5-day suspension in this IRA appeal and remand the case for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is employed as the Chief of the Health Administration
Service (HAS) for the New Mexico Veterans Affairs Health Care System
(NMVAHCS). Initial Appeal File (IAF), Tab 18 at 93. She filed a complaint
with the Office of Special Counsel (OSC) asserting that she was retaliated against
due to whistleblower activities. IAF, Tab 11 at 5-22. On August 14, 2020, OSC
closed its file in the matter and informed the appellant of her right to seek
corrective action from the Board. IAF, Tab 1 at 14-15. Thereafter, the appellant
filed the instant IRA appeal with the Board. IAF, Tab 1. She alleged that she
engaged in the following protected activities and made the following protected
disclosures: (1) participating in the investigation of the agency’s OIG of HAS in
or around March 2018; (2) refusing to violate the Veterans Health Administration
(VHA) Handbook by adopting the Information Technology (IT) official’s2
proposal to scan backlogged documents to a network drive; (3) signing an
affidavit in another employee’s equal employment opportunity (EEO) complaint;
and (4) disclosing her concerns regarding the scanning issues to the OIG in
November 2019.2 IAF, Tab 11 at 13-15, Tab 15 at 3. She further alleged that in
reprisal for her whistleblower activities, the Assistant Director issued her a letter
of reprimand on December 14, 2018, and her first-line supervisor, the Associate
Director, lowered her 2019 performance rating from excellent to fully successful
and issued her a 5-day suspension on January 24, 2020. IAF, Tab 1 at 5, 11;
Tab 11 at 14, 19; Tab 15 at 3.
The administrative judge found that the Board has jurisdiction over all of
the appellant’s claims except her 5-day suspension. IAF, Tab 15 at 2-3.
Specifically, he found that the appellant had elected to file a formal grievance of
the suspension and was therefore precluded from challenging it in this IRA
appeal, pursuant to 5 U.S.C. § 7121(g). IAF, Tab 3 at 1, Tab 15 at 2. The
administrative judge issued an initial decision on the written record, granting in
part the appellant’s request for corrective action. IAF, Tab 29, Initial Decision
(ID). In particular, he found that the appellant proved that her November 2019
OIG activity was protected activity, that this activity was a contributing factor in
the agency’s decision to lower her performance rating, and that the agency failed
to establish by clear and convincing evidence that it would have taken this
personnel action in the absence of her whistleblowing activity. ID at 7, 13.
The administrative judge did not grant corrective action as it related to the
letter of reprimand, finding that, while the appellant’s 2018 OIG activity was
2 The appellant made a series of vague and confusing allegations in her OSC complaint,
which the administrative judge synthesized into the above-stated protected activities
and personnel actions and found Board jurisdiction over. IAF, Tab 11 at 5-22, Tab 15
at 3. The appellant was allowed 3 days to file any objections to the administrative
judge’s characterization of her claims. IAF, Tab 15 at 1 n.1. Not only did the appellant
fail to file any objection as to his characterization of her claims or his jurisdictional
findings while the matter was pending in front of the administrative judge, she has also
raised no such objection on review. Accordingly, we accept the administrative judge’s
characterization of her claims. 3
protected under 5 U.S.C. § 2302(b)(9), she failed to establish that any official
involved in the personnel actions had knowledge of this activity, and thus, failed
to prove that her protected activity was a contributing factor in the challenged
personnel actions. ID at 4-5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. Therein, she argues that the administrative judge incorrectly
concluded that the agency officials did not have knowledge of her March 2018
OIG activities, because, among other things, she briefed members of upper
management, including the Assistant Director, regarding action plans and
mitigation steps in response to the OIG’s 2018 site visit, which included
numerous references to HAS.3 Id. at 4. The agency has filed a response in
opposition to the appellant’s petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the Whistleblower Protection Enhancement Act of 2012, after the
appellant makes a nonfrivolous allegation of jurisdiction, she must prove by
preponderant evidence that (1) she made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D) and; (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Salerno v. Department of the
Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant proves that her protected
disclosure or activity was a contributing factor in a personnel action taken against
her, the agency is given an opportunity to prove, by clear and convincing
evidence, that it would have taken the same personnel action in the absence of the
3 The appellant does not dispute any other findings made by the administrative judge.
PFR File, Tab 1 at 4. As we find that the record supports the administrative judge’s
findings, we see no basis for disturbing them. Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997) (declining to disturb the administrative judge’s findings
where she considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same). 4
protected disclosure. Id.; 5 U.S.C. § 1221(e)(1)-(2). Corrective action may not
be ordered if the agency meets its burden of clear and convincing evidence.
5 U.S.C. § 1221(e)(2).
We agree with the administrative judge’s findings that the appellant
established by preponderant evidence that she engaged in protected activity under
5 U.S.C. § 2302(b)(9)(C) when she disclosed information to the OIG in
November 2019, that this activity was a contributing factor in the agency’s
decision to lower her performance rating, and that the agency failed to prove by
clear and convincing evidence that it would have taken such action in the absence
of her whistleblowing activity. ID at 7, 13. However, upon review of the record,
we also find that the appellant proved by preponderant evidence that her 2018
OIG activity was a contributing factor to the agency’s decision to issue her a
letter of reprimand. Nevertheless, because we also find that the agency proved by
clear and convincing evidence that it would have issued the reprimand regardless
of the appellant’s OIG activity, we ultimately agree with the administrative
judge’s decision to deny corrective action with respect to the letter of reprimand.
Finally, we vacate the administrative judge’s finding that the Board does not have
jurisdiction over the appellant’s 5-day suspension and remand this appeal for the
administrative judge to determine if the appellant meets the definition of
“supervisor” or “manager” in 5 U.S.C. § 7103(a)(10)-(11), which would exempt
her from the election of remedies provisions at 5 U.S.C. § 7121(g). If that is so,
the administrative judge should further adjudicate her claim that the 5-day
suspension was retaliatory.
The appellant established that her 2018 OIG activity was a contributing factor in
the agency’s decision to issue her a letter of reprimand.
In the initial decision, the administrative judge stated that there was
“nothing to demonstrate” that any official involved in the personnel actions knew
of the appellant’s 2018 OIG activity. ID at 5. Based on this conclusion, he found
that the appellant failed to prove by preponderant evidence that the 2018 OIG5
activity was a contributing factor to the personnel actions challenged. Id. Upon
our review of the record, we disagree with this conclusion.
To prove that a disclosure was a contributing factor in a personnel action,
the appellant only need demonstrate that the fact of, or the content of, the
protected disclosure was one of the factors that tended to affect the personnel
action in any way. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 18
(2015). The knowledge/timing test allows an employee to demonstrate that the
disclosure was a contributing factor in a personnel action through circumstantial
evidence, such as evidence that the official taking the personnel action knew of
the disclosure and that the personnel action occurred within a period of time such
that a reasonable person could conclude that the disclosure was a contributing
factor in the personnel action. Id. Once the knowledge/timing test has been met,
we must find that the appellant has shown that her whistleblowing was a
contributing factor in the personnel action at issue, even if after a complete
analysis of all of the evidence a reasonable factfinder could not conclude that the
appellant’s whistleblowing was a contributing factor in the personnel action. Id.
It appears that in 2018, the OIG was conducting an audit or investigation
into alleged deficiencies in care and service at the NMVAHCS.4 IAF, Tab 18
at 31. The appellant, as the Chief of HAS, provided the OIG with data as
requested, and assisted in formulating action plans and solutions to address these
issues. Id. at 4-8, 30-45, 72-77; PFR File, Tab 1 at 4. Members of upper
management and leadership were a part of these discussions, which included
individuals outside of the appellant’s immediate chain of command, such as the
4 The only protected activity or disclosure that occurred before the December 14, 2018
letter of reprimand was the appellant’s 2018 disclosures to the OIG. IAF, Tab 11 at 13,
15; Tab 15 at 3. Thus, none of the other protected activities could have been a
contributing factor in the letter of reprimand because they occurred after its issuance.
See Sherman v. Department of Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015)
(stating that a disclosure that occurs after the personnel action at issue was taken cannot
be considered a contributing factor in that personnel action). Accordingly, we only
examine whether the appellant’s 2018 OIG activity was a contributing factor in the
agency’s decision to issue her a letter of reprimand.6
Assistant Director.5 IAF, Tab 18 at 4, 37-45, 72-77; PFR File, Tab 1 at 4. Thus,
it appears that responding to the OIG’s requests for data, and addressing the
concerns noted by the OIG, was a collaborative effort between upper
management. IAF, Tab 18 at 37-45, 72-77; PFR File, Tab 1 at 4. Therefore, we
find that it is more likely than not that the Assistant Director, a member of upper
management, was aware of the appellant’s 2018 OIG activities prior to issuing the
letter of reprimand. This finding is further bolstered by the absence of any
evidence from the agency denying knowledge of the same activity.
Accordingly, we find that the appellant established the knowledge element
of the knowledge/timing test by preponderant evidence. We also find that the
appellant established the timing element. The Board has held that a personnel
action taken within approximately 1 to 2 years of the appellant’s protected
disclosures satisfies the knowledge/timing test. Mastrullo, 123 M.S.P.R. 110,
¶ 21. The appellant was first contacted by the OIG in May 2018 but was involved
with providing data and information after then, including in August 2018.6 IAF,
Tab 18 at 31, 37-44. In December 2018, the appellant received a letter of
reprimand from the Assistant Director.7 IAF, Tab 28 at 4-7. A period of 4
months undoubtedly satisfies the knowledge/timing test. Accordingly, we find
5 We rely on emails that, in part, were sent to a group chain in email entitled “ABQ
BCHL LEADERSHIP.” IAF, Tab 18 at 37-44. Although not specifically stated, we
assume that the Assistant Director of NMVACHS would be part of this group.
6 While the appellant has alleged that she first communicated with the OIG in
March 2018, there is no evidence to support such communication in the record. IAF,
Tab 11 at 13. However, the record does establish that the OIG contacted the appellant
for an interview during their site visit in May 2018. IAF, Tab 18 at 30-31. In any
event, regardless of when the appellant first communicated with the OIG, the record
establishes that she did so prior to being issued a letter of reprimand.
7 Because the administrative judge found that the appellant’s 2019 OIG activity was a
contributing factor in the agency’s decision to lower her performance appraisal, there is
no need to examine whether the 2018 OIG activity was also a contributing factor in this
personnel action, as it has no impact on the outcome of this case. ID at 7. 7
that she has established that her 2018 OIG activity was a contributing factor in
issuing the letter of reprimand.8
The agency proved by clear and convincing evidence that it would have issued the
letter of reprimand absent whistleblowing activity.
Once the appellant makes a prima facie showing of whistleblower reprisal,
the burden shifts to the agency to prove by clear and convincing evidence that it
would have taken the same personnel action in the absence of the protected
disclosure. Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7
(2015). In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider the following factors: the strength of the
agency’s evidence in support of its action; the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999).
The Board does not view these factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but rather weighs these
factors together to determine whether the evidence is clear and convincing as a
whole. Lu, 122 M.S.P.R. 335, ¶ 7. The Board must consider all the evidence,
including evidence that fairly detracts from the conclusion that the agency met its
burden. Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012).
8 While we acknowledge that the administrative judge erred in not examining other
evidence to determine if the appellant met the contributing factor standard after he
found that she did not meet the knowledge/timing test, because we conclude that the
appellant actually did meet the knowledge/timing test, we need not address other
evidence that might prove contributing factor. ID at 5; see Dorney v. Department of the
Army, 117 M.S.P.R. 480, ¶ 15 (2012) (holding that if an administrative judge
determines that an appellant has failed to satisfy the knowledge/timing test, he shall
consider other evidence, such as evidence pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action, whether the whistleblowing was
personally directed at the official taking the action, or whether these individuals had a
desire or motive to retaliate against the appellant).8
We first look to the strength of the agency’s evidence in issuing the letter
of reprimand. See Carr, 185 F.3d at 1323. The reprimand was issued due to
ineffective communication and favoritism on the part of the appellant. IAF,
Tab 28 at 4-6. The letter was supported by testimony and evidence gathered
during an Administrative Investigative Board (AIB) investigation. Id. Based
upon the statements of 20 employees, the AIB concluded that HAS leadership,
including the appellant, lacked communication and exhibited favoritism. Id.
at 10-14, 17. The letter relied on these statements, and included numerous quotes
from employees supporting the allegations contained therein. Id. at 4-6. Based
on these facts, we find that the agency presented very strong evidence to support
its decision to issue the appellant a letter of reprimand.
Regarding the second Carr factor, i.e., the existence and strength of the
agency’s motive to retaliate, we find that there is little evidence demonstrating a
motive to retaliate. The appellant’s 2018 OIG activities appear to have been part
of a collaborative effort between leadership to address concerns raised by the
OIG. IAF, Tab 18 at 4-8, 30-44, 72-77; PFR File, Tab 1 at 4. There is nothing
that indicates that the appellant’s OIG activities were unexpected or discouraged.
Further, it does not appear that the nature of the information disclosed by the
appellant was secretive, such that management would feel the need to punish the
appellant for having disclosed this information. IAF, Tab 18 at 4-8, 30-44, 72-
77; PFR File, Tab 1 at 4. Instead, it appears that the information disclosed by the
appellant to the OIG was part of this collaborative process by leadership to
address questions posed by the OIG and to improve the quality of services offered
by NMVAHCS. IAF, Tab 18 at 4-8, 30-44, 72-77; PFR File, Tab 1 at 4. Thus,
while we acknowledge that the issues plaguing the agency, which the OIG was
investigating, were not particularly flattering to the agency, in light of the fact
that the appellant was part of a management team addressing such concerns, we
do not believe that her activities levied any additional criticisms that would
establish that the other members of management, who were also involved in9
providing the OIG with information regarding the same issues, would have had a
motive to retaliate. See Whitmore, 680 F.3d at 1370 (noting that agency officials
responsible for overall performance of the agency may be motivated to retaliate if
criticism reflects on them in their capacities as managers and employees).
Accordingly, we find that the agency would have little motive to retaliate based
on the nature and circumstances of the appellant’s 2018 OIG disclosures.
Regarding the third Carr factor, whether the agency treated similarly
situated employees who were not whistleblowers the same, the agency has not
presented any evidence on this point. Our reviewing court has observed that,
when an agency fails to produce comparator evidence, the third Carr factor
cannot weigh in favor of the agency. Siler v. Environmental Protection Agency ,
908 F.3d 1291, 1299 (Fed. Cir. 2018). Considering the strength of the agency’s
evidence in support of the reprimand, coupled with a lack of any evidence of
motive, we find that this factor is mostly neutral.
Weighing the factors against one another and on the whole with respect to
the letter of reprimand, we find that the first factor warrants significant weight,
particularly given the detailed narrative and the overwhelming evidence
supporting the allegations contained within the letter. Furthermore, our finding
that there is little-to-no evidence of motive gives further weight to the conclusion
that the agency established by clear and convincing evidence that it would have
issued the letter of reprimand absent the appellant’s whistleblowing activities.
Because the agency has met its burden of clear and convincing evidence,10
corrective action as it relates to the letter of reprimand cannot be granted.9
5 U.S.C. § 1221(e)(2).
We remand this appeal for the administrative judge to determine if the appellant
is exempt from 5 U.S.C. § 7121(g) and, if so, to further adjudicate her claim that
her 5 - day suspension was retaliatory.
Under the 1994 amendments to the Whistleblower Protection Act, an
employee subjected to an action appealable to the Board who alleges that the
contested action was taken in reprisal for whistleblowing may elect to pursue a
remedy through only one of the following remedial processes: (1) an appeal to
the Board under 5 U.S.C. § 7701; (2) a grievance filed under an applicable
negotiated grievance procedure; or (3) a complaint seeking corrective action from
OSC under 5 U.S.C. §§ 1211-1222. 5 U.S.C. § 7121(g); Requena v. Department
of Homeland Security , 2022 MSPB 39, ¶ 7. Whichever remedy is sought first by
an aggrieved employee is deemed an election of that procedure and precludes
pursuing the matter in either of the other two fora. Scalera v. Department of the
Navy, 102 M.S.P.R. 43, ¶ 9 (2006).
On review, the appellant does not challenge the administrative judge’s
finding that she made a prior binding election under 5 U.S.C. § 7121(g) to contest
9 In the initial decision, the administrative judge analyzed the appellant’s second
whistleblowing activity, i.e., her refusal to accept the IT’s scanning proposal, under
5 U.S.C. § 2302(b)(9)(D) and determined that, because the IT official never “ordered”
her to take any action, the activity was not protected. ID at 5-6. The appellant does not
dispute the administrative judge’s findings, and we find that the record supports his
conclusions. However, although the appellant claimed that she was retaliated against
because she refused to violate the VHA Handbook, in her narrative, she argued several
times that the IT’s scanning plan was a potential threat to patient safety and a violation
of the VHA Handbook. IAF, Tab 18 at 12-16. Therefore, we clarify that, to the extent
that the appellant argued that her refusal was protected under 5 U.S.C. § 2302(b)(8), we
find that her disclosure is not protected because the suggestion was never implemented;
thus, any danger to patient safety was merely speculative in nature, and such disclosure
did not evidence a violation of law, rule, or regulation because there is no evidence that
such suggestion was adopted. See Miller v. Department of Homeland Security ,
111 M.S.P.R. 312, ¶ 6 (2009) (disclosures regarding danger to the public must be both
substantial and specific to be protected, and disclosure of speculative danger does not
meet this test).11
her 5-day suspension by filing a grievance and therefore, that the Board lacks
jurisdiction over that personnel action in the instant IRA appeal. IAF, Tab 3 at 1,
Tab 15 at 2. Nevertheless, the issue of Board jurisdiction is always before the
Board and may be raised at any time. See Stoglin v. Department of the Air Force ,
123 M.S.P.R. 163, ¶ 7 (2015), aff’d per curiam , 640 F. App’x 864 (Fed. Cir.
2016). After the administrative judge issued his initial decision, the Board issued
its decision in Requena, 2022 MSPB 39, ¶ 11, in which it held that supervisors
and management officials are excepted from the election of remedies provisions
of 5 U.S.C. § 7121(g). In Requena, the Board explained that 5 U.S.C. § 7103(a)
(2) narrowly defined “employee” as excluding a “supervisor” or “management
official.” Id. Because the election of remedies statute for “an aggrieved
employee” falls within chapter 71, it is, therefore, subject to this narrower
definition of “employee.” Id.
Because the administrative judge did not have the benefit of this decision,
he did not address whether the appellant met the definition of “supervisor” or
“management official” and was, thus, not subject to the election of remedies
limitations. For the reasons discussed below, we vacate his finding that the
appellant is precluded from challenging her 5-day suspension in this IRA appeal
and remand this appeal for the administrative judge to determine whether the
appellant is subject to the election of remedies limitations.
Here, it is undisputed that the appellant’s title was “Chief of HAS.” IAF,
Tab 17 at 14, Tab 19 at 59. Although her position description is not in the record,
her performance evaluation indicates the appellant likely had managerial and
supervisory duties. IAF, Tab 19 at 60. For example, her performance elements
included “leading change” and “leading people,” among others. Id. Additionally,
the documentation surrounding the AIB investigation into alleged misconduct by
“HAS leadership” specifically listed the appellant as a member of leadership who
was being investigated. IAF, Tab 28 at 10, 15. These documents suggest that the
appellant is a “supervisor” and “management official,” as defined by 5 U.S.C.12
§ 7103(a)(10)-(11), rather than an “employee,” as defined by 5 U.S.C. § 7103(a)
(2). If that is so, the appellant is not subject to the election of remedies
provisions of 5 U.S.C. § 7121(g). However, the nature of the appellant’s position
as it relates to this statutory scheme was not argued below or on review. We
therefore find it appropriate to remand this appeal for further proceedings.
Requena, 2022 MSPB 39, ¶ 15.
On remand, the administrative judge should first give the parties an
opportunity to present argument and evidence about the nature of the appellant’s
position. If the administrative judge determines that the appellant is a
“supervisor or a management official,” and not an “employee” for purposes of
chapter 71, subject to the election of remedies provisions at 5 U.S.C. § 7121(g),
he must then determine if the Board has jurisdiction over this appeal. If he so
finds, the administrative judge should develop the record on and adjudicate the
appellant’s claim that her 5-day suspension was retaliation for her protected
activities, including her 2018 OIG activity, her October 2019 participation in
another employee’s EEO complaint, and her November 2019 OIG activity. The
administrative judge shall incorporate his findings by reference regarding the
appellant’s remaining claims, as modified here, into the remand initial decision. 13
ORDER
For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.14 | Pittore_MaritzaDE-1221-21-0015-W-1_Remand_Order.pdf | 2024-09-16 | MARITZA PITTORE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-21-0015-W-1, September 16, 2024 | DE-1221-21-0015-W-1 | NP |
506 | https://www.mspb.gov/decisions/nonprecedential/Morel_Jessica_L_DC-1221-19-0149-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JESSICA L. MOREL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-1221-19-0149-W-1
DATE: September 16, 2024
THIS ORDER IS NONPRECEDENTIAL1
Michelle F. Bercovici , Esquire, Kristin D. Alden , Esquire, and Elizabeth
Paukstis , Esquire, Washington, D.C., for the appellant.
Timothy M. O’Boyle , Esquire, Hampton, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
review. We MODIFY the initial decision to clarify and supplement the
administrative judge’s conclusion that the agency proved by clear and convincing
evidence that it would have terminated the appellant during her probationary
period absent the six whistleblowing disclosures identified in the initial decision.
We FIND that the appellant nonfrivolously alleged that her additional patient rape
and colostomy disclosures were protected under 5 U.S.C. § 2302(b)(8) and were a
contributing factor in the agency’s decision to terminate her during her
probationary period. We REMAND the appeal to the administrative judge to
reopen the record, allow the parties to engage in limited discovery, and present
evidence and argument on the following issues: (1) whether the appellant proved
by preponderant evidence that she made the alleged patient rape and colostomy
disclosures, and those disclosures were protected and were a contributing factor
in the agency’s decision to terminate her during her probationary period; and
(2) if so, whether the agency proved by clear and convincing evidence that it
would have terminated the appellant during her probationary period absent her
disclosures, including the colostomy and patient rape disclosures.
BACKGROUND
The following facts, as recited in the initial decision, are generally
undisputed. Initial Appeal File (IAF), Tab 68, Initial Decision (ID). The
appellant was appointed to the Staff Psychiatrist position on July 9, 2017, subject
to a 2-year probationary period. ID at 3; IAF, Tab 1 at 15, 19. On March 21,
2018, the appellant was notified that a Professional Standards Board (PSB) was
convened to conduct a summary review of her employment during her
probationary period and make recommendations concerning retention or
separation from the agency.2 ID at 23; IAF, Tab 1 at 78-80. The PSB ultimately
2 The PSB was convened to review the following alleged deficiencies in the appellant’s
conduct: (1) deficiencies in her professional behavior; (2) failure to follow
instructions; and (3) failure to be respectful in her treatment of patients, staff, and2
recommended the appellant’s separation during her probationary period, and the
Chief of Staff and Director concurred. ID at 24; IAF, Tab 1 at 81-83. On
April 6, 2018, the agency notified the appellant that her employment would be
terminated, effective April 20, 2018. ID at 3; IAF, Tab 1 at 15-16. The appellant
filed this IRA appeal. ID at 1, 3; IAF, Tab 1. The administrative judge accepted
six out of the appellant’s eleven disclosures as meeting the jurisdictional
threshold of a reasonable belief of a disclosure under 5 U.S.C. § 2302(b)(8). IAF,
Tab 13. A 3-day hearing was held. Hearing Transcripts (HTs) 1-3.
The administrative judge issued an initial decision, finding that (1) the
Board has jurisdiction over the appeal, (2) the appellant presented preponderant
evidence that she made six whistleblowing disclosures that were a contributing
factor in her probationary termination, (3) she did not present preponderant
evidence that she was subjected to a hostile work environment, and (4) the agency
proved by clear and convincing evidence that it would have terminated the
appellant during her probationary period notwithstanding her whistleblowing
disclosures. ID at 3-73. Therefore, the administrative judge denied the
appellant’s request for corrective action. ID at 73.
The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 9, 11-12.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish a prima facie case of retaliation for whistleblowing
disclosures, the appellant must prove by preponderant evidence that she made a
protected disclosure that was a contributing factor in a personnel action taken
against her. 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security ,
122 M.S.P.R. 335, ¶ 7 (2015). If the appellant meets this burden, the agency is
given an opportunity to prove by clear and convincing evidence that it would
others. IAF, Tab 1 at 78-80. 3
have terminated her during her probationary period in the absence of the
whistleblowing disclosures. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335,
¶ 7.
We affirm the administrative judge’s finding that the six whistleblowing
disclosures identified in the initial decision were protected and were a
contributing factor in the agency’s decision to terminate the appellant during her
probationary period.
In the initial decision, the administrative judge identified and analyzed the
following disclosures: (1) an October 4, 2017 report about social worker C.W.’s
violation of state guardianship laws to Dr. E.M. (the appellant’s first-line
supervisor); (2) a December 6, 2017 report to Dr. D.D. (the appellant’s second-
line supervisor),3 Dr. A.K., Dr. E.M., and agency regional counsel regarding the
various ways in which the medical center psychiatric inpatient unit was violating
laws relating to involuntary commitments; (3) a January 11, 2018 report to
Dr. D.D. and Dr. E.M. regarding voluntary commitments being unlawfully
transferred like involuntary commitments; (4) a February 14, 2018 disclosure
regarding the unit’s violation of state guardianship laws because of its failure to
ensure that the courts were exercising proper oversight over the admission of
patients through guardians; (5) a March 13, 2018 report to Dr. D.D. regarding the
unit’s continued failure to comply with state guardianship laws and improper
admission of patients; and (6) a March 15, 2018 report to Dr. D.D. regarding the
unit’s continued failure to comply with state guardianship laws and improper
admission of patients.4 ID at 4; IAF, Tab 13 at 3-4. The administrative judge
found that each of these disclosures was a protected whistleblowing disclosure
that was a contributing factor in the appellant’s termination during her
3 Dr. D.D. would later become the appellant’s first-line supervisor after Dr. E.M. left
his position.
4 Below, the administrative judge considered disclosures (5) and (6) together. IAF,
Tab 13 at 4; ID at 4. For completeness, we consider them separately.4
probationary period. ID at 4-20. The agency does not challenge these
determinations on review, and we affirm them herein.5
We affirm as modified the administrative judge’s conclusion that the agency
proved by clear and convincing evidence that it would have terminated the
appellant during her probationary period absent the six whistleblowing
disclosures identified in the initial decision.
In determining whether an agency has shown by clear and convincing
evidence6 that it would have taken the same personnel action in the absence of
whistleblowing disclosures, the Board will consider the following factors: (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials who were
involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who are not whistleblowers but who are otherwise
similarly situated. Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999). The U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has instructed the Board to “evaluate all the pertinent evidence in
determining whether an element of a claim or defense has been proven
adequately.” Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir.
2012).
The appellant argues that the administrative judge’s clear and convincing
analysis was fundamentally flawed. PFR File, Tab 9 at 32-63. In particular, the
appellant contends that the administrative judge improperly evaluated the first
and second Carr factors. Id. at 34-63. We agree that the administrative judge’s
5 The appellant does not challenge the administrative judge’s determination that she did
not prove by preponderant evidence that she suffered a hostile work environment. We
affirm the initial decision in this regard.
6 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established.
5 C.F.R. § 1209.4(e). It is a higher standard than a preponderance of the evidence,
which is the degree of relevant evidence that a reasonable person, considering the
record as a whole, would accept as sufficient to find that a contested fact is more likely
to be true than untrue . Id.; 5 C.F.R. § 1201.4(q). 5
evaluation of the Carr factors was deficient. Indeed, the administrative judge did
not cite to Carr or another case that identified these factors, nor did he explicitly
identify these factors in the initial decision. It appears, however, that he at least
implicitly considered these factors. ID at 59-73. Accordingly, we modify the
initial decision to clarify and supplement the administrative judge’s analysis of
the Carr factors.
Carr factor 1 strongly favors the agency.
The initial decision contains a lengthy recitation of the evidence in the
record. E.g., ID at 6-18, 20-70. The administrative judge noted the PSB Chair’s
testimony that the PSB determined unanimously that the appellant’s behavior was
unbecoming of a medical staff member and was inconsistent with the agency’s
mission, and the PSB recommended that the appellant be terminated during her
probationary period because she was unable to work with a team in an inpatient
setting. ID at 60-61. The administrative judge found “significant” the
appellant’s testimony that she was presented with “a document listing grievances
for the whole time of [her] employment from the social workers,” which the
administrative judge concluded was “strong evidence” that her disclosures were
not the basis for her termination. ID at 70 (citing HT 1 at 160 (testimony of the
appellant)). The administrative judge noted that the evidence accumulated “from
[the appellant’s] first day . . . represented the opinions of a broad-based
population of disaffected and antagonistic nurses, social workers[,] and other
staff,” which led the PSB to conclude that the appellant failed to meet the
professionalism standard expected of agency employees. ID at 70.
We state at the outset that the agency’s evidence in support of termination
is strong. We have considered the evidence in the PSB file and the other
documentary evidence and testimony given below. We disagree with the
appellant that the agency’s evidence did not justify her termination. PFR File,
Tab 9 at 45-53. Rather, there is extensive testimonial and documentary evidence,
as discussed in the initial decision and herein, regarding the appellant’s 9-month6
tenure as Staff Psychiatrist to support the agency’s decision to terminate her
based on her unprofessional behavior and interactions with staff and patients.
IAF, Tab 59; e.g., ID at 6-18, 20-73. On review, the appellant makes a number of
arguments regarding process and the agency’s evidence. We have considered
each of these arguments, but none warrants a different outcome.
For example, the appellant challenges the PSB notice itself, arguing that
the defective notice calls into question the strength of the agency’s evidence.
PFR File, Tab 9 at 43-45 (citing Chavez v. Department of Veterans Affairs ,
120 M.S.P.R. 285 (2013)). We agree with the appellant that the agency’s PSB
notice is problematic because it only identified the three alleged deficiencies,
supra n.2, but it did not provide any examples or context to describe them. PFR
File, Tab 9 at 44; IAF, Tab 1 at 78-80; see IAF, Tab 40 at 8 (explaining in the
agency Handbook that the PSB notice should provide the “reasons why the [PSB]
is being done with sufficient detail for the employee to clearly understand why he
or she may not be fully qualified and satisfactory”). Rather, the appellant was
evidently required to glean, through the approximately 100-page PSB file, which
she had to separately request, the underlying factual basis for the alleged
deficiencies. HT 1 at 151 (testimony of the appellant); IAF, Tab 33 at 58-67,
Tab 40 at 8. The appellant’s reliance on Chavez is not persuasive. There, the
Board concluded that an agency’s failure to provide a procedurally adequate
termination notice did not, by itself, indicate that the agency lacked evidence in
support of its action. Chavez, 120 M.S.P.R. 285, ¶ 30. Even if we assumed for
the purposes of our analysis that the precedent in Chavez is applicable to the
agency’s procedurally inadequate PSB notice, we similarly find that such
evidence, standing alone, does not warrant the conclusion that the agency lacked
evidence in support of the action.
The appellant also challenges the contents of the PSB file. PFR File, Tab 9
at 45-53. The appellant raised many, if not all, of these arguments in her closing
submission, IAF, Tab 67 at 7-9. The administrative judge acknowledged in the7
initial decision the appellant’s testimony that the PSB evidence file included her
disclosures about the involuntary commitment process, and as noted above, he
found “strong evidence” that her disclosures were not the basis for her
termination. ID at 24-25, 70. Additionally, he acknowledged the record evidence
concerning other parts of the PSB file, including the ethics consults that she filed
against other providers, her evaluations, various memoranda written by her
coworkers documenting their interactions with her, and Disruptive Behavior
Committee (DBC) reports.7 E.g., ID at 20-22, 36, 43-44, 47-50, 57, 64-65, 67-69.
The administrative judge ultimately concluded that the appellant’s argument that
the PSB recommendation was based on flawed evidence failed to show that her
disclosures contributed to it. ID at 72. In this regard, he noted that the evidence
existed,8 the PSB accepted it, and it originated and accumulated independently
from the appellant’s disclosures. ID at 72-73. We interpret the initial decision as
the administrative judge rejecting the appellant’s arguments regarding the
evidence in the PSB file. Nevertheless, we will address some of the appellant’s
arguments to clarify the evidence that we have considered in reaching our
conclusion that the agency’s evidence is strong.
Regarding the February 13, 2018 unsatisfactory proficiency report, which
cited “validated inappropriate interactions with co-workers, supervisors[,] and
others,” the appellant asserts that the PSB file omitted the evidence relied upon
by Dr. E.M. in this report, Dr. D.D. failed to include her “successful” October
7 DBC reports are reports that the appellant submitted about patients’ disruptive
behavior.
8 The appellant asserts that the administrative judge’s analysis ignores the Federal
Circuit’s directive from Miller v. Department of Justice , 842 F.3d 1252, 1259 (Fed. Cir.
2016), i.e., that the Board’s focus should not be “whether the agency has put forward
some evidence purporting to show independent causation” but instead should be
“whether such evidence is strong.” PFR File, Tab 9 at 34. Even if the administrative
judge committed an error in this regard, such error is not prejudicial to the appellant’s
substantive rights and provides no basis for reversal of the initial decision . Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984). As discussed herein, we
find that the agency’s evidence in support of termination is strong.8
2017 proficiency report and altered the second proficiency report to cover the
same time frame as the earlier proficiency report, and the agency failed to follow
its own procedures in issuing its evaluations of her. PFR File, Tab 9 at 46-47;
IAF, Tab 59 at 6-7. She asserts that this circumstantial evidence undercuts the
strength of the agency’s evidence. PFR File, Tab 9 at 47.
As part of our analysis of the strength of the agency’s evidence, we have
considered the following evaluations: (1) the overall satisfactory October 2017
proficiency report, which covered the time period from July 9, 2017, to
September 30, 2017, and which noted among other things that the appellant’s
clinical skills are “satisfactory,” she “effectively treats all psychiatric
conditions,” and “at times” the appellant “has had friction with other team
members,” IAF, Tab 1 at 76-77; (2) the February 7, 2018 Focused Professional
Performance Evaluation (FPPE), which covered the time frame of July 31, 2017,
to February 1, 2018, and which the appellant passed except for a professionalism
subset entitled “Respectful treatment of Patients, Staff[,] [and] Others,”9 IAF,
Tab 59 at 181-82; and (3) the February 13, 2018 (second) proficiency report,
which covered the time period of July 9, 2017, to February 13, 2018, and for
which the appellant was rated unsatisfactory overall,10 IAF, Tab 59 at 6-7. We
recognize that there were some irregularities in the timing of some of the
agency’s evaluations of the appellant, due in part to the fact that Dr. E.M. left his
position as her first-line supervisor, but we are not persuaded that any such
irregularities change our evaluation of this Carr factor. The purpose of the
probationary period is to “as fully as possible” determine an employee’s “fitness”
9 The basis of the rating in this subset was because the agency has a cut-off of three
occurrences of “validated complaints from patients, staff, or other providers,” and the
appellant received six verified complaints during the relevant time period. IAF, Tab 59
at 181; HT 3 at 783-84 (testimony of Dr. E.M.).
10 Specifically, the appellant was “deemed satisfactory or better in all categories except
Personal Qualities,” which resulted in the unsatisfactory rating. IAF, Tab 59 at 6. The
interim rating was “based on validated inappropriate interactions with co-workers,
supervisors[,] and others.” Id. 9
and “terminate [a probationer’s] services during this period if the employee fails
to demonstrate fully [her] qualifications for continued employment.” 5 C.F.R.
§ 315.803(a). Therefore, it is appropriate for the agency to consider (and
reconsider) any issues that arose regarding the appellant’s performance or
potential misconduct to enable it to determine if she was qualified for the Staff
Psychiatrist position.11
The appellant also contends that portions of the PSB file “consist[]
exclusively of written complaints that [Dr. D.D.] created and solicited
immediately following” her February 13, 2018 disclosure, and she alleges that
such evidence was not credible because it included post hoc and hearsay reports.
PFR File, Tab 9 at 47-52; IAF, Tab 59 at 9-23. We will not categorically dismiss
evidence—even evidence that was compiled after the appellant made her
disclosures and/or hearsay evidence—because to do so would violate the directive
that we “evaluate all of the pertinent evidence in determining whether an element
or a claim or defense has been proven adequately.” Whitmore, 680 F.3d at 1368.
Moreover, it is well established that hearsay evidence is admissible in Board
proceedings. Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83-84 (1981).
The assessment of its probative value necessarily depends on the circumstances of
each case. Id. Here, the existence of evidence dated after the appellant made the
February 13, 2018 disclosure and which may have contained some hearsay
evidence does not warrant a different outcome because is it largely consistent
with the testimonial evidence and documentary record as a whole.
For example, we have considered the appellant’s argument that the
March 1, 2018 memorandum, which allegedly memorialized a meeting between
Dr. D.D. and several social workers, is “inherently suspicious and incredible” and
was disavowed by the social workers who signed it. PFR File, Tab 9 at 27, 47,
11 Because of the significance of the probationary period in this regard, we disagree
with the appellant’s characterization that the agency resurrected closed issues in her
subsequent evaluations or her assertion that the administrative judge ignored the
agency’s pretextual resurrection of closed issues. PFR File, Tab 9 at 41-42. 10
50. This memorandum stated that the appellant could be “rigid,” “‘adamant’
when having a point of view,” “not open to . . . feedback from any team
members,” “confrontational” with a patient, and generally raised concerns about
how the appellant treated patients with substance abuse issues.12 PFR File, Tab 9
at 50; IAF, Tab 59 at 21-22. Significantly, L.R., who signed the March 1, 2018
memorandum, provided first-hand testimony that the appellant was “reactive,”
“confrontational,” “harsh” and “stern” towards a patient, and “intimidating,” and
she affirmed that the appellant was “assertive [to nurses] to the point of being
inappropriate.” HT 2 at 508-10, 519-20, 539-40 (testimony of L.R.). S.S., who
also signed the March 1, 2018 memorandum, testified in her deposition13 that the
appellant told a veteran he was “not depressed” after he said he was depressed,
and she observed the appellant berate a resident because the resident disagreed
with her. IAF, Tab 56 at 10 (deposition testimony of S.S.). S.S. testified that she
had “concerns” about the appellant’s interactions with veterans “because they
were not respectful.” Id. at 11 (deposition testimony of S.S.). She also
acknowledged that she had concerns about the way that the appellant treats
patients with substance abuse issues, although she admitted that she did not
remember if she raised that concern during the March 1, 2018 meeting. Id. at 22
(deposition testimony of S.S.). T.V., another signatory to the March 1, 2018
memorandum, testified that the work environment was “hostile.” HT 2 at 674
(testimony of T.V.). T.V. also testified that the appellant was “rigid,” “did not
run a team atmosphere,” “had a hard time listening to others,” and her
“personality did not go with the team.” HT 2 at 679, 728 (testimony of T.V.).
12 The appellant identifies various discrepancies such as who convened the March 1,
2018 meeting, who authored the memorandum of that same date, and which attendee
said what during the meeting. PFR File, Tab 9 at 27, 50. However, in light of the
testimony that we have cited herein and the nearly 17-19 months that had passed
between when the memorandum was signed and the testimony was given, such
discrepancies do not detract from the overall import of the memorandum.
13 The parties agreed to substitute S.S.’s deposition testimony for live testimony. HT 1
at 15-19.11
Based on this testimony, we are not persuaded that any social worker disavowed
this memorandum or that the memorandum itself was suspicious or incredible.
We have considered the appellant’s arguments regarding other memoranda or
correspondence documenting staff’s interactions with the appellant, but we are
not persuaded that their inclusion in the PSB file was improper.
Likewise, we have considered and reject the appellant’s arguments
involving the inclusion of DBC reports, ethics consults, and “emails and
communications detailing [the a]ppellant’s whistleblowing activities and their
impact.”14 Significantly, the appellant has not cited to any agency policy or rule
that prohibits such information being presented to the PSB. Moreover, the
whistleblower protection statutes are not meant to protect individuals from their
own misconduct. Carr, 185 F.3d at 1326. In this regard, the PSB Chair testified
that the appellant talked to the Board members about involuntary commitments
and guardianship issues, but the focus of the PSB’s review was the appellant’s
“behavior” and those other issues had no effect on the PSB deliberations. HT 2
at 562, 603 (testimony of the PSB Chair).
The appellant also argues on review that the administrative judge made
numerous errors in his analysis. For example, she asserts that the administrative
judge ignored evidence that Dr. D.D. and Dr. E.M. “hunted” for evidence
immediately after she escalated her disclosures to regional counsel on
December 6, 2017. PFR File, Tab 9 at 38-39. However, and as discussed in the
14 The appellant had an opportunity to “[r]espond orally and/or in writing to the PSB,”
IAF, Tab 1 at 78, but she did not submit any documentation in advance of the PSB
because she “was never given an explanation as to why [she] was being brought in front
of the Board” and it would be “difficult” to respond to the PSB file “without an
explanation of what . . . those hundreds of pages meant,” HT 1 at 152-53 (testimony of
the appellant); HT 2 at 561-62 (testimony of the PSB Chair). In her testimony below,
the appellant explained that she testified before the PSB that the agency retaliated
against her for her disclosures, and she questioned the relevance and/or veracity of
some of the evidence submitted to the PSB. HT 1 at 153-55 (testimony of the
appellant). She also testified that she tried to provide the PSB with evidence to refute
her failed FPPE, but the PSB would not accept it into the record because they were not
submitted in advance. Id. at 155 (testimony of the appellant).12
initial decision, the record reflects that complaints against the appellant were
raised before she made this disclosure. ID at 26, 29-30, 55-56, 62-64; see, e.g.,
IAF, Tab 1 at 76-77 (the appellant’s October 2017 proficiency report noting that
the appellant “has had friction with other team members”), Tab 32 at 15-21 (the
appellant’s response to the reports of contact filed against her after she filed the
ethics consults against other providers), Tab 59 at 44, 48-50 (reports of contact
regarding ethics consults); HT 3 at 986-87 (testifying that “[v]ery shortly” after
the appellant arrived in the unit, the nurses reported that the appellant said that
their “contribution to morning rounds was irrelevant”) (testimony of Dr. D.D.).
The appellant also argues that the administrative judge’s decision to
“blindly credit” the testimony of agency officials “vastly overestimates” the
strength of the agency’s evidence.15 PFR File, Tab 9 at 35. She also asserts that
the administrative judge “ignored credible evidence”—namely the testimony of
three nurse witnesses—regarding their positive working interactions with her. Id.
at 36-37; see, e.g., Whitmore, 680 F.3d at 1368 (cautioning that the Board’s
decision will be vacated and remanded if “considerable countervailing evidence is
manifestly ignored or disregarded”).
We do not agree with the appellant’s assertion that the administrative judge
“blindly credit[ed]” the testimony of agency officials. Rather, the administrative
judge, in his lengthy initial decision, thoroughly and objectively described the
testimonial evidence. ID at 6-18, 20-70. The appellant even acknowledges on
review that the administrative judge discussed the positive testimony of the three
nurses in the initial decision, PFR File, Tab 9 at 36-37, although he did not
specifically do so in his clear and convincing analysis. We supplement the initial
decision to specifically consider the testimony of these three nurses in our
15 The appellant also asserts that the administrative judge failed to make “a single
credibility determination.” PFR File, Tab 9 at 11, 30-31. We are not persuaded that the
administrative judge committed any error in this regard. Indeed, as evidenced from this
matter, it is possible that different people could have different points of view on the
same incidents or interactions involving the appellant. We need not resolve such
different responses to properly evaluate the strength of the agency’s evidence.13
evaluation of the strength of the agency’s evidence. The administrative judge
noted that these witnesses testified that the appellant was, among other things,
“pleasant,” “a good doctor who addressed issues that required attention,”
“assertive but not argumentative,” “appropriate and professional in her treatment
of staff and patients,” and never “unprofessional[]” or “dismissive toward the
nursing staff.” ID at 14, 27-29.
The appellant further asserts that the administrative judge erred when he
concluded that the PSB’s decision was independent from the “poisoned” PSB
evidence file. PFR File, Tab 9 at 53-54. In this regard, she asserts that the
administrative judge erred in finding that the PSB “verified” the evidence before
it when the PSB Chair “conceded” that it did not verify or confirm this evidence.
Id. at 53 (citing HT 2 at 581-82). Significantly, the cited pages do not show such
testimony.16 Moreover, because we do not find that the PSB evidence file
contained any improper evidence, the appellant had an opportunity to provide a
written and/or oral response to the PSB, and she appeared before the PSB, we do
not agree that the administrative judge erred in his conclusion in this regard.
We have also considered the appellant’s argument that the administrative
judge failed to consider the extent to which discord between the social workers
and nurse managers was the result of staff’s hostile reaction to the appellant’s
disclosures. PFR File, Tab 9 at 42-43. She notes that, in Chavez, the Board
found that the administrative judge overestimated the strength of the agency’s
evidence in support of its decision to terminate Ms. Chavez during her
probationary period because the administrative judge did not consider such
evidence, among other things. Id. (citing Chavez, 120 M.S.P.R. 285, ¶¶ 28-31).
In contrast to Chavez, the administrative judge acknowledged the disagreements
between the appellant and social workers and nurse staff, and he considered and
16 Rather, the PSB Chair testified that the PSB typically calls employees to speak to it
in order to “verify reports of contact to the evidence file [it] had, to add anything that
they felt was needed, and for [the PSB members] to question if there was anything in
there that might not be clear.” HT 2 at 588 (testimony of the PSB Chair).14
rejected the notion that the appellant’s disclosures regarding involuntary
commitments led the staff to complain about her professionalism and tact. ID
at 70-73. Moreover, this matter is factually distinguishable from Chavez.
Ms. Chavez had “excellent performance,” Chavez, 120 M.S.P.R. 285, ¶ 31,
whereas the appellant’s evaluations ranged from satisfactory to unsatisfactory,
IAF, Tab 32 at 13-14, Tab 59 at 6-7, 181-82.
We have also considered countervailing evidence in our analysis of this
Carr factor. For example, we have considered the favorable testimony of the
three nurses, discussed above. Additionally, we have considered that the PSB
evidence file failed to include the I-CARE award that the appellant received, her
satisfactory 2017 proficiency report, and her responses to an earlier fact-finding
involving complaints against her.17 PFR File, Tab 9 at 53 n.27; ID at 53-54; IAF,
Tab 32 at 13-21, Tab 33 at 23.
We have considered the appellant’s remaining arguments on review, but
none warrant a different outcome.18 In conclusion, and notwithstanding the
17 The appellant asserts that the agency must prove its three charges against her by clear
and convincing evidence. PFR File, Tab 9 at 33. However, the appellant cites to no
case law to support this proposition, and we know of none. Nevertheless, it does not
appear from our review of the record that there was any evidence presented at the PSB
involving the appellant’s failure to follow instructions (deficiency (2)). Id. at 34-35.
Indeed, the agency’s prehearing submission, its closing brief, and its response to the
petition for review do not clearly identify any instruction that the appellant failed to
follow. IAF, Tabs 30, 66; PFR File, Tab 10.
18 For example, the appellant contends that the initial decision fails to hold the agency
to the required burden of proof. PFR File, Tab 9 at 33-34. In this regard, the appellant
contends that the administrative judge erroneously applied the standard for chapter 75
adverse action appeals, not the clear and convincing standard applicable in IRA appeals.
Id. It appears that this argument refers to the following statement made by the
administrative judge in the context of a discussion of the appellant’s argument that the
PSB recommendation was based on flawed evidence: “Even if the evidence of
dismissive treatment toward nurses or harsh conduct toward social workers may not rise
above a preponderance, that [sic] is not the question presented in this [IRA] appeal.”
ID at 72 (citations added). We are not certain what the administrative judge meant by
this statement, but it does not warrant a different outcome. We have reviewed the
record, and we find that the agency proved by clear and convincing evidence that it
would have terminated the appellant during her probationary period absent the six
disclosures discussed herein.15
deficiencies in the PSB notice, and the countervailing evidence, there is
considerable credible evidence, including first-hand testimonial evidence, from
social workers and other staff to support the agency’s decision to terminate the
appellant during her probationary period due to her professional behavior,
including her interactions with social workers, nurses, and patients. We
ultimately conclude that the agency’s evidence in support of termination is
strong. Thus, this Carr factor strongly favors the agency.
Carr factor 2 strongly favors the appellant.
The administrative judge made the following findings regarding motive to
retaliate: (1) any argument that Dr. D.D. manipulated the PSB process is
“extremely weak” considering the lack of retaliatory motive by Dr. D.D. herself
and the three levels of independent review between the referral to the PSB, the
recommendation to the Chief of Staff, and the final decision by the Director;
(2) there was “no evidence” of a motive to retaliate for the appellant’s concerns
over alleged failings in the hospital’s involuntary commitment processes or
policies; (3) there was no nexus between any of the appellant’s disclosures and
the Director’s decision to terminate her probationary appointment; and (4) the
nurses and social workers who gave evidence to the PSB were motivated by
considerations “wholly independent” of the appellant’s disclosures. ID at 70-72.
On review, the appellant asserts that the administrative judge limited his
analysis of motive to the PSB and approving officials, he made multiple errors of
law and fact regarding the managers’ motive to retaliate, and he ignored evidence
of Dr. D.D.’s motive to retaliate. PFR File, Tab 9 at 55-63. She also asserts that
retaliatory motive may be imputed to the deciding official when an individual
with knowledge of the protected activity and a motive to retaliate influenced the
deciding official. Id. at 54 (citing Nasuti v. Department of State , 120 M.S.P.R.
588, ¶ 7 (2014)). We modify the initial decision to clarify and supplement the
administrative judge’s analysis of this Carr factor. 16
In contrast to the administrative judge, we find, based on our review of the
record, the gravity of the appellant’s six whistleblowing disclosures, and the
possible exposure to the agency revealed by the appellant’s disclosures, that there
could be a motive to retaliate by Dr. D.D., the PSB members, the Chief of Staff,
and the Director. See, e.g., Whitmore, 680 F.3d at 1370 (“Those responsible for
the agency’s performance overall may well be motivated to retaliate even if they
are not directly implicated by the disclosures, and even if they do not know the
whistleblower personally, as the criticism reflects on them in their capacities as
managers and employees.”).
It is true, as the administrative judge noted below, that Dr. D.D. accepted
the appellant’s disclosures about the hospital’s involuntary commitment policy
and its guardianship processes, and the agency acted favorably upon them by
convening trainings on the subjects raised by the appellant, authorizing outreach
and educational communications with the magistrate court to correct and update
policies, and working to develop policy statements to comply with the law. ID
at 71. However, these actions do not necessarily diminish the strength of the
motive to retaliate, particularly where these disclosures brought greater visibility
to the appellant’s unit, the medical center, and Dr. D.D. in particular. Thus, we
find that Dr. D.D. could have a strong motive to retaliate. Moreover, as the
person responsible for compiling the PSB file, Dr. D.D.’s motive could have
influenced the PSB, Chief of Staff, and/or the Director. See, e.g., Mangano v.
Department of Veterans Affairs , 109 M.S.P.R. 658, ¶ 30 (2008) (explaining that,
in examining retaliatory motive for an agency action, the officials involved in the
action may include other officials upon whom the proposing or deciding officials
relied for information).
We also agree with the appellant that the serious allegations contained in
her various disclosures could create a motive to retaliate among some of her
coworkers. The appellant specifically named C.W. in one of her disclosures, and
her other disclosures regarding the involuntary commitment and guardianship17
policies and processes may implicate or affect other social workers, nurses,
and/or agency officials. The appellant’s coworkers who could be implicated or
affected by the disclosures either provided testimony directly to the PSB or were
identified in the PSB file, and that could have influenced the PSB’s
recommendation and the agency’s ultimate decision to terminate the appellant
during her probationary period. For these reasons, we find that this Carr factor
strongly favors the appellant.
Carr factor 3 slightly favors the agency.
The administrative judge discussed some evidence relating to the third Carr
factor in the initial decision. ID at 61. For example, the PSB Chair testified that
an earlier PSB recommended—and the Director upheld—a radiologist for
termination during his probationary period because he failed to keep up on his
readings, causing a delay in patient care. Id.; see HT 2 at 567-68 (testifying that
the radiologist failed to work within the team structure of his service and did not
help out when needed, which the PSB considered professional misconduct)
(testimony of J.H.).19 There is no evidence that the radiologist was a
whistleblower. In her petition for review, the appellant does not raise any error
on review regarding the administrative judge’s recitation of this evidence relating
to Carr factor three, but in her reply brief, she asserts that the agency never
proffered colorable evidence on this Carr factor. We disagree. We modify the
initial decision to find explicitly that the third Carr factor slightly favors the
agency.
19 The administrative judge also noted in the initial decision that the PSB Chair testified
that a subsequent PSB recommended termination of another doctor who would not work
with the nurses or with a team. ID at 61; HT 2 at 569-70 (testimony of J.H.); IAF,
Tab 30 at 95-96. However, it appears that this termination occurred approximately a
year after the appellant’s termination, and the administrative judge sustained the
appellant’s objection to further testimony in this regard. HT 2 at 569-73 (testimony of
J.H.). We do not consider this evidence in our analysis of this Carr factor, and we
modify the initial decision accordingly.18
Conclusion
We find that first Carr factor—the strength of the agency’s evidence—far
outweighs the other Carr factors.20 We are left with a firm belief that the agency
would have terminated the appellant during her probationary period absent the six
whistleblowing disclosures discussed in the initial decision. Accordingly, we
conclude that the agency satisfied its clear and convincing burden in this regard,
and we affirm as modified the administrative judge’s decision to deny corrective
action.
The appellant nonfrivolously alleged that she made two additional whistleblowing
disclosures.
On review, the appellant contends that the administrative judge erred in
rejecting two disclosures that she made on December 27, 2017, one involving an
allegation that a patient was raped and one involving the agency’s failure to
properly care for a colostomy patient.21 PFR File, Tab 9 at 64-69. Because the
administrative judge rejected these allegations at the jurisdictional stage, we must
now determine if the appellant made a nonfrivolous allegation that (1) she
reasonably believed that her disclosures evidenced one of the circumstances
described in 5 U.S.C. § 2302(b)(8) and (2) the disclosures were a contributing
factor in the agency’s decision to take a personnel action against her.22 Bradley v.
Department of Homeland Security , 123 M.S.P.R. 547, ¶ 6 (2016). A nonfrivolous
allegation is an assertion that, if proven, could establish the matter at issue. Id.;
see 5 C.F.R. § 1201.4(s) (explaining that a n allegation generally will be considered
20 This would be true even if we determined that the third Carr factor favored the
appellant.
21 The appellant does not challenge the administrative judge’s finding that her other
disclosures did not meet the jurisdictional threshold of a reasonable belief of a
disclosure under 5 U.S.C. § 2302(b)(8), IAF, Tab 13, and we do not address any of the
other disclosures on review.
22 There is also a requirement to prove administrative exhaustion with the Office of
Special Counsel, but the administrative judge found that this requirement was satisfied.
IAF, Tab 13 at 1-2.19
nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation
that is more than conclusory, is plausible on its face, and is material to the legal issues in
the appeal). Whether allegations are nonfrivolous is determined on the basis of the
written record. Bradley, 123 M.S.P.R. 547, ¶ 6. Any doubt or ambiguity as to
whether the appellant made nonfrivolous jurisdictional allegations should be
resolved in favor of finding jurisdiction. Id.
The proper test for determining whether an employee had a reasonable
belief that her disclosures revealed misconduct prohibited under the
whistleblower protection statutes, is this: Could a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
employee reasonably conclude that the actions of the Government evidence
wrongdoing as defined by the whistleblower protection statutes? Lachance v.
White, 174 F.3d 1378 (Fed. Cir. 1999); Bradley, 123 M.S.P.R. 547, ¶ 7.
The appellant described the patient rape disclosure as follows:
[The a]ppellant reported a patient’s allegations of rape to Dr. [D.D.]
and Nurse Manager [C.B.]. [Nurse Manager C.B.] and Dr. [D.D.]
insisted, erroneously, that there was no Agency policy in regards to
reporting such patient rape allegations and had the patient’s phone
calls blocked so that she could not call the police. [The a]ppellant
reported the patient’s allegations to [the agency] police.
IAF, Tab 7 at 8-9. The administrative judge noted that the appellant’s own words
reflect that the disclosure involved a disagreement over policy, and her
disagreement with her supervisors about the policy was not a protected
disclosure. IAF, Tab 13 at 5-6. The appellant asked the administrative judge to
reconsider his finding below, arguing, among other things, that her disclosure was
to agency police, not to other agency employees. IAF, Tab 36 at 5 n.2, 13 n.5.
The administrative judge did not change his prior ruling that the disclosure
related to an internal policy disagreement, not a law, rule, or regulation. IAF,
Tab 42 at 3. The appellant reasserts on review that the “core” of the disclosure20
was her report to the police, not the policy dispute over the agency’s protocols.
PFR File, Tab 9 at 64-65.
The administrative judge’s confusion about the nature of the appellant’s
disclosure is somewhat understandable because she does use the word “policy” in
her disclosure. Moreover, in her statement of jurisdiction, the appellant cited to
agency directive 2012-026, which appears to be the agency’s policy regarding
sexual assaults. IAF, Tab 7 at 18-19, 221. However, the Federal Circuit stated
that in enacting the Whistleblower Protection Enhancement Act of 2012,
“Congress made clear that policy decisions and disclosable misconduct . . . are
not mutually exclusive.” Hessami v. Merit Systems Protection Board , 979 F.3d
1362, 1371 (Fed. Cir. 2020). More importantly, and independent of any policy
disagreement, the appellant disclosed to both agency officials and the police that
a patient was raped. An assault is a violation of criminal law, and a disclosure
that an assault occurred is a disclosure of a violation of law, rule, or regulation.
Lewis v. Department of Commerce , 101 M.S.P.R. 6, ¶ 11 (2005). Accordingly,
we find that the appellant nonfrivolously alleged that the patient rape disclosure
was protected. We reverse the administrative judge’s decision in this regard.
In the colostomy disclosure, the appellant stated that she “reported to
Dr. [D.D.] her declination of admission of a colostomy patient to the unit because
of the unit’s lack of fitness for caring for such a patient, as evidenced by its
struggles to care for another colostomy patient on or about November 2017.”
IAF, Tab 7 at 9, Tab 59 at 12. The email containing the disclosure explained that
the prior colostomy patient “was dropping feces around the unit as he walked and
was sleeping in a bed full of feces every morning.” IAF, Tab 59 at 12. The
administrative judge characterized this disclosure as a policy disagreement
between the activities of social workers and discretionary medical determinations,
and he concluded that philosophical or policy disagreements with an agency
decision or action are not protected unless they separately constitute a protected
disclosure of one of the categories of wrongdoing listed in section 5 U.S.C.21
§ 2302(b)(8)(A). IAF, Tab 13 at 4-5 (citing Webb v. Department of the Interior ,
122 M.S.P.R. 248, ¶ 8 (2015)).
On review, the appellant asserts that the core of this disclosure involved a
direct and specific danger to patient health because the unit nurses failed to
properly treat a prior colostomy patient. PFR File, Tab 9 at 65-68. She contends
that similar failures in patient care were found protected by the Board in Chavez.
Id. at 68. In Chavez, 120 M.S.P.R. 285, ¶¶ 21, 26, the Board found that Ms.
Chavez’s disclosures, involving failure to change patient dressings and allowing a
patient to lay in his feces for over 6 hours, were both protected whistleblowing
disclosures involving a substantial and specific danger to public health or safety.
In particular, the Board in Chavez held that, regardless of whether the patients in
question actually suffered harm, it is readily foreseeable that failure to change a
patient’s dressings and letting an ill person lay in his feces for 6 hours could
result in an infection. Id.
This disclosure presents a much closer call than the patient rape disclosure.
Ms. Chavez’s disclosures regarding nurses not changing the patient dressings and
a patient being left to lay in his feces appear to have been made within 24 hours
of her observation of these events, Chavez, 120 M.S.P.R. 285, ¶¶ 10-11, 21, 26,
whereas the appellant’s disclosure was made approximately 1 month after she
observed the agency’s alleged inability to care for a prior colostomy patient.
Nevertheless, despite this difference in timing, we find that the appellant
nonfrivolously alleged that she disclosed a substantial and specific danger to
public health or safety, and we reverse the administrative judge’s decision in this
regard.
The appellant nonfrivolously alleged that the patient rape and colostomy
disclosures were a contributing factor in the agency’s decision to terminate her
during her probationary period, and we remand the appeal for further adjudication
of these claims.
One way of proving that the appellant’s whistleblowing disclosures were a
contributing factor in the personnel action is the “knowledge/timing test.” Alarid22
v. Department of the Army , 122 M.S.P.R. 600, ¶ 13 (2015) (citing Shibuya v.
Department of Agriculture , 119 M.S.P.R. 537, ¶ 22 (2013)). The
knowledge/timing test allows an employee to demonstrate that the whistleblowing
disclosure was a contributing factor in a personnel action through circumstantial
evidence, such as evidence that the official taking the personnel action knew of
the whistleblowing disclosure and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the
whistleblowing disclosure was a contributing factor in the personnel action.
Alarid, 122 M.S.P.R. 600, ¶ 13; Carey v. Department of Veterans Affairs ,
93 M.S.P.R. 676, ¶ 11 (2003); see 5 U.S.C. § 1221(e)(1).
Given that the appellant made the patient rape and colostomy disclosures to
her supervisor, Dr. D.D., who was responsible for providing evidence to the PSB,
and the approximate 4-month delay between these disclosures and the appellant’s
termination, we find that the appellant nonfrivolously alleged that the patient rape
and colostomy disclosures were contributing factors in the agency’s decision to
terminate her during her probationary period. See, e.g., Baldwin v. Department of
Veterans Affairs , 113 M.S.P.R. 469, ¶ 26 (2010) (finding that the 4 months
between the appellant’s disclosure and his termination occurred within a period of
time such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action). The appellant also states, under
penalty of perjury, that Dr. D.D. learned the next morning that she reported the
patient rape to the police and “berated” her about this disclosure. IAF, Tab 7
at 3, 5, 19. For the same reasons described above, we further find that the
appellant has satisfied her burden to make a nonfrivolous allegation of
knowledge/timing regarding her patient rape disclosure to the police.
The appellant argues on review that it is not necessary to remand the appeal
for further adjudication of these claims. PFR File, Tab 9 at 65 n.34, 68. We
disagree. Because the administrative judge did not accept the patient rape and
colostomy disclosures for adjudication early in the proceedings, IAF, Tab 13, the23
parties likely did not engage in discovery regarding these disclosures. Moreover,
the appellant was not given a chance to prove by preponderant evidence that she
made her patient rape and colostomy disclosures, or that they were protected and
a contributing factor in the agency’s decision to terminate her during her
probationary period. If the appellant meets this burden, the agency must set forth
evidence regarding whether it would have terminated the appellant during her
probationary period absent these disclosures, and the appellant is entitled to
challenge that evidence or present any countervailing evidence in this regard.
Accordingly, we remand the appeal for the administrative judge to reopen
the record for the parties to engage in limited discovery regarding the patient rape
and colostomy disclosures and to permit the parties to present evidence and
argument, including testimonial evidence, related to (1) whether the appellant
proved by preponderant evidence that she made the patient rape and colostomy
disclosures, and those disclosures were protected and were a contributing factor
in her termination, and (2) whether the agency can prove by clear and convincing
evidence that it would have terminated the appellant during her probationary
period absent all of the disclosures, including the patient rape and colostomy
disclosures. See, e.g., Mattil v. Department of State , 118 M.S.P.R. 662, ¶¶ 12-13
(2012) (noting that there are circumstances that arise when the substance of the
alleged disclosure, as well as the extent to which the retaliating official was
aware of the disclosure, is relevant to retaliatory motive and remanding the appeal
for complete adjudication of the issues, including an opportunity for further
discovery and submission of documentary evidence and hearing testimony).
After conducting the additional proceedings, the administrative judge may
reincorporate prior findings as appropriate, consistent with this Remand Order.
ORDER
For the reasons discussed above, we affirm the administrative judge’s
conclusion that the agency proved by clear and convincing evidence that it would24
have terminated the appellant absent the six disclosures discussed in the initial
decision. We also remand this appeal to the Washington Regional Office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: _____________________ _________
Gina K. Grippando
Clerk of the Board
Washington, D.C.25 | Morel_Jessica_L_DC-1221-19-0149-W-1_Remand_Order.pdf | 2024-09-16 | JESSICA L. MOREL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-19-0149-W-1, September 16, 2024 | DC-1221-19-0149-W-1 | NP |
507 | https://www.mspb.gov/decisions/nonprecedential/Holmes_Timothy_T_AT-0714-19-0581-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIMOTHY T. HOLMES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-19-0581-I-1
DATE: September 16, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Tsopei Robinson , Esquire, West Palm Beach, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable performance under 38 U.S.C. § 714. For
the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant was employed by the agency as a GS-13 Information
Technology Project Manager. Initial Appeal File (IAF), Tab 1 at 1. Effective
June 14, 2019, the agency removed him based on a single charge of failure to
meet his performance standards. IAF, Tab 7 at 133-36. In the sole specification
of the charge, the agency alleged that, after being given an opportunity to
improve, the appellant failed to perform satisfactorily in two critical elements of
his performance plan, “Project Management, Acquisition and COR,”2 and “Budget
Accountability and Risk Management.” Id. at 8. The agency alleged the same for
one non-critical element, “Administrative, Security, & Reporting.” Id. The
agency took the action under the authority of 38 U.S.C. § 714, which codified the
relevant provisions of the Department of Veterans Affairs Accountability and
Whistleblower Protection Act of 2017, Pub. L. No. 115-41, § 202(a), 131 Stat.
862, 869-73 (VA Accountability Act). Id. at 133.
¶3The appellant appealed his removal to the Board. IAF, Tab 1. In addition
to challenging his removal, he also asserted that the action was in reprisal for
filing a prior Board appeal and for whistleblowing, and that he was discriminated
against based on his military status. IAF, Tab 35 at 3-5. After the appellant
withdrew his request for a hearing, the administrative judge issued an initial
decision based on the written record. IAF, Tab 46, Initial Decision (ID).
Therein, when considering the agency’s charge, the administrative judge
discussed only whether the appellant failed to perform satisfactorily under the
“Budget Accountability and Risk Management” critical element, and found that
the agency proved by substantial evidence that the appellant failed to provide
“fiscal accountability” as required by the performance standard by requesting
funding for a project not under his purview and by providing multiple and
considerably incorrect accountings for two of the projects to which he was
2 While not defined in the record, from the context of this appeal, “COR” appears to be
an abbreviation for Contracting Officer’s Representative. 2
assigned. ID at 3-7. Although the administrative judge acknowledged that the
appellant’s performance plan “does not expressly define what unacceptable
performance is,” he nonetheless concluded that, because the appellant’s
performance plan allows for only one “exception” for any one performance
standard to be rated fully successful, these above-described deficiencies in his
performance resulted in his failing the “Budget Accountability and Risk
Management” critical element. ID at 7. Accordingly, he sustained the charge.
Id.
¶4The administrative judge also found that the appellant failed to prove his
affirmative defenses of reprisal for filing a prior Board appeal, reprisal for
whistleblowing, and discrimination on the basis of his military status under the
Uniformed Services Employment and Reemployment Rights Act (USERRA). ID
at 8-11. Regarding the penalty of removal, although the appellant argued that the
agency failed to consider mitigating factors under Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981),3 the administrative judge
explained that “the unambiguous mandate of 38 U.S.C. § 714(d)(2)(B) prohibiting
the Board from mitigating the [agency’s] selected penalty precludes any such
analysis.” ID at 3 n.2. Accordingly, he affirmed the agency’s action removing
the appellant. ID at 11.
¶5In his petition for review, the appellant repeats the administrative judge’s
observation that the agency’s performance plan does not expressly define
unacceptable performance. Petition for Review (PFR) File, Tab 1 at 8.4 He also
argues that he received inadequate notice of his performance deficiencies,
specifically stating that his Fiscal Year (FY) 2019 mid-year review failed to
3 In Douglas, the Board articulated a nonexhaustive list of factors relevant to the
penalty determination in adverse actions. Douglas, 5 M.S.P.R. at 305-06.
4 The appellant timely filed his petition for review on December 24, 2018, and, because
the initial decision was apparently not properly served on the parties through e-Appeal,
also requested an extension of time to supplement the petition for review. PFR File,
Tabs 1-2; IAF, Tab 48. Despite being afforded an opportunity to supplement his
petition for review, the appellant did not submit an additional filing. PFR File, Tab 3.3
provide any specific examples of unacceptable performance. Id. at 9.
Additionally, he argues that most of the examples of poor performance relied
upon by the agency occurred before he received a “Fully Successful” performance
rating in all critical elements for FY 2018. Id. at 8. The agency has not filed a
response.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved the charge by substantial evidence.
¶6In a performance-based action under section 714, the agency must show by
substantial evidence that its performance standard was reasonable and provided
for accurate measurement of the appellant’s performance, and that the appellant’s
performance was unacceptable according to that measurement. Semenov
v. Department of Veterans Affairs , 2023 MSPB 16, ¶¶ 18-19. As noted above, the
administrative judge discussed the evidence supporting the agency’s allegations
and found that it established by substantial evidence that the appellant failed to
responsibly track and provide fiscal accountability for programs under his
dominion, as required by his performance standard.5 ID at 3-7. The
administrative judge also determined that the agency’s performance standard was
reasonable and measurable, and that the appellant’s performance in the “Budget
5 We discern no error in the administrative judge’s decision not to address the first
critical element, “Project Management, Acquisition and COR,” and the noncritical
element, “Administrative, Security, & Reporting,” which were both included in the
agency’s charge of failure to meet performance standards. IAF, Tab 7 at 8, 133. The
Board has explained that an agency is only required to prove the essence of the charge
and need not prove each factual specification supporting the charge. See Cole
v. Department of the Air Force , 120 M.S.P.R. 640, ¶ 8 (2014). The appellant’s
performance plan stated that an unacceptable rating in any one critical element would
result in an unacceptable summary rating. IAF, Tab 7 at 109. Thus, the administrative
judge could sustain the charge, as he did here, based on the appellant’s unacceptable
performance in one critical element alone. We discern no basis to disturb the
administrative judge’s finding that the appellant did not meet the critical element
“Budget Accountability and Risk Management,” and therefore his performance was
unacceptable overall. 4
Accountability and Risk Management” critical element was unacceptable. ID
at 6-7 & n.5. Accordingly, he sustained the charge. ID at 7.
¶7On review, the appellant argues that his performance standards did not
expressly define unacceptable performance. PFR File, Tab 1 at 8. The
administrative judge addressed this argument and found that the performance
standards’ description of “fully successful” performance provided sufficient
information for determining whether performance was unacceptable. ID at 3. We
agree with the administrative judge. The appellant’s performance was rated on a
3-tier scale—exceptional, fully successful, and unacceptable. IAF, Tab 7 at 103.
“Fully successful” was therefore the minimum level of performance that the
appellant needed to achieve, anything less than that being unacceptable. In any
event, to be valid, performance standards must adequately describe acceptable
performance, not unacceptable performance. See Eibel v. Department of the
Navy, 857 F.2d 1439, 1443 (Fed. Cir. 1988).
¶8The appellant also renews his argument that the agency failed to give him
specific examples of his deficiencies so that he could improve his performance.
PFR File, Tab 1 at 9; IAF, Tab 42 at 7. However, we agree with the
administrative judge that this chapter 43 requirement does not apply to actions
taken under the authority of 38 U.S.C. § 714. ID at 2-3 & n.1; see 38 U.S.C.
§ 714(c)(3); see also Semenov , 2023 MSPB 16, ¶ 15.6
¶9Finally, the appellant argues that the agency based its finding that his
performance was unacceptable on deficiencies that occurred prior to him
receiving a “Fully Successful” performance rating on all his critical elements for
his FY 2018 appraisal. PFR File, Tab 1 at 8; IAF, Tab 7 at 114-18. We disagree.
The notice of proposed removal is based on the appellant’s mid-year review
6 The agency’s performance appraisal form directs the rating official to give specific
examples of any unacceptable performance. IAF, Tab 7 at 103. To the extent that the
appellant is arguing that the agency violated this procedural protection, we disagree.
The appellant’s most recent performance rating contained specific, concrete examples
of the types of performance deficiencies that led to his proposed removal approximately
5 months later. Id. at 8-10, 98-109.5
covering October 1, 2018, through April 2019. IAF, Tab 7 at 8, 132, Tab 32
at 54. It was not based on the mid-year appraisal he received in August 2018,
which covered October 1, 2017, to June 9, 2018, or the one he received covering
the entirety of FY 2018. IAF, Tab 7 at 114-24, 132. Further, the appellant’s
“Fully Successful” ratings in the critical elements were for his FY 2018 mid-year
performance review; his rating for the entirety of FY 2018, i.e., October 1, 2017,
through September 30, 2018, was unacceptable on every element, critical and
noncritical. Id. at 98-109, 114-20.
¶10Based on our review of the initial decision, we find that the administrative
judge adequately considered the record as a whole, drew appropriate inferences,
and made well-reasoned conclusions regarding the agency’s burden to prove its
charge. Accordingly, we discern no basis to disturb the administrative judge’s
decision to sustain the charge. See Crosby v. U.S. Postal Service , 74 M.S.P.R.
98, 105-06 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
Affirmative Defenses.
¶11As noted above, the appellant asserted the following three affirmative
defenses: reprisal for whistleblowing, discrimination based on his military status
in violation of USERRA, and reprisal for filing a prior Board appeal. IAF,
Tab 33 at 4-5, Tab 35 at 3 -5. Regarding the appellant’s claim of whistleblower
reprisal, to establish this affirmative defense, an appellant must show, by
preponderant evidence, that he made a protected disclosure pursuant to 5 U.S.C.
§ 2302(b)(8) and the disclosure was a contributing factor in the personnel action.
Covington v. Department of the Interior , 2023 MSPB 5, ¶ 15. A protected
disclosure includes any disclosure of information that the employee reasonably
believes evidences a violation of law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to6
public health or safety. 5 U.S.C. § 2302(b)(8); Ayers v. Department of the Army ,
123 M.S.P.R. 11, ¶ 13 (2015). The test of a reasonable belief is whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions
evidenced one of the types of wrongdoing listed above. Ayers, 123 M.S.P.R. 11,
¶ 13.
¶12Below, the appellant argued that, in his response to his FY 2019 mid-year
performance review, he disclosed that his negative review was an abuse of
authority because his supervisor was setting him up to be removed. IAF, Tab 32
at 57, Tab 42 at 17-18. In the initial decision, the administrative judge found that
a disinterested observer would readily conclude that the appellant’s performance
was “quite substandard,” and the appellant’s objection was nothing more than
disagreement with his supervisor’s assessment and did not constitute a disclosure
of an abuse of authority. ID at 10. Thus, he concluded that the appellant’s
whistleblower reprisal affirmative defense must fail. Id. The appellant has not
challenged the administrative judge’s finding on review, and we similarly
conclude that the appellant failed to prove by preponderant evidence that he
disclosed information that he reasonably believed evidenced the sort of
wrongdoing set forth in 5 U.S.C. § 2302(b)(8), thereby failing to prove that he
engaged in protected whistleblowing.
¶13The appellant also argued as an affirmative defense that his military service,
which included 4 or 5 days per month from May 2018 until his June 2019
removal, was a motivating or substantial factor in the agency’s decision to
remove him. IAF, Tab 42 at 13-15. An employee making a claim of
discrimination related to military status under USERRA bears the burden of
showing by preponderant evidence that his military service was a “substantial or
motivating factor” in the adverse employment action. Sheehan v. Department of
the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001) (citation omitted).
“Discriminatory or retaliatory motivation under USERRA may be reasonably7
inferred from a variety of factors, including proximity in time between the
employee’s military activity and the adverse employment action, inconsistencies
between the proffered reasons and other actions of the employer, an employer’s
expressed hostility towards individuals or activities protected by the statute
together with knowledge of the employee’s military activity or protected
USERRA activity, and disparate treatment of certain employees compared to
other employees with similar work records or offenses.” Id. at 1014.
¶14In the initial decision, the administrative judge acknowledged the temporal
proximity between the appellant’s military service—which occurred 4-5 times per
month in the year leading up to his removal—and his removal, but concluded that
the agency’s explanation that it removed the appellant due to poor performance
was “entirely consistent with its actions and was amply supported by the record.”
ID at 11. Accordingly, he denied this affirmative defense. Id. The appellant has
not challenged these findings on review, and we discern no reason to disturb
them.7 See McMillan v. Department of Justice , 120 M.S.P.R. 1, ¶ 17 (2013)
(explaining that the protection of employment under USERRA is based, in
pertinent part, upon the employee’s compliance with the reasonable standards of
performance of all employees).
¶15Regarding the appellant’s claim of reprisal for filing a prior Board appeal,
the administrative judge explained that, because the appellant did not raise
allegations of whistleblower reprisal in the prior appeal, such a claim should be
analyzed under the general reprisal standard set forth in Warren v. Department of
the Army, 804 F.2d 654 (Fed. Cir. 1986).8 ID at 8-9. However, in the prior
appeal, the appellant raised a claim of reprisal for activity protected under
7 Even if the temporal proximity was sufficient for the appellant to establish his burden,
see Sheehan, 240 F.3d at 1014, he would still not be entitled to corrective action
because the agency otherwise established that it would have removed the appellant
based on his performance, in the absence of his military service, see, e.g.,
Fahrenbacher v. Department of Veterans Affairs , 89 M.S.P.R. 260, ¶ 14 (2001)
(denying corrective action under USERRA when the removal at issue was an
appropriate penalty for the sustained misconduct).8
Title VII. Holmes v. Department of Veterans Affairs , MSPB Docket No. AT-
0752-14-0278-I-1 Appeal File, Tab 12 at 5, 11-12.9 In Pridgen v. Office of
Management and Budget , 2022 MSPB 31, the Board explained that, when an
appellant alleges that the agency retaliated against him for a prior Board appeal in
which he raised a claim of discrimination or reprisal under Title VII, the Title VII
standard, and not the Warren standard, applies. Pridgen, 2022 MSPB 31, ¶ 32.
Under that standard, an appellant must show that the prohibited consideration was
a motivating factor in the agency’s decision to take the action, or that it played
“any part” in the action. Id., ¶¶ 20-22, 30. Thus, in this appeal, the appellant
must show that his prior Board appeal was a motivating factor in the agency’s
decision to remove him. Accordingly, in light of our decision to remand this
appeal as set forth below, the administrative judge should provide the parties with
notice of the Title VII evidentiary standards and burdens of proof and permit
them to supplement the record on this issue. He should then analyze this
affirmative defense under the standard set forth in Pridgen.
We remand this appeal for further adjudication consistent with Semenov
v. Department of Veterans Affairs , 2023 MSPB 16.
¶16Although the administrative judge properly sustained the charge of failure
to meet performance standards, remand is still necessary. In the decision notice
removing the appellant, the deciding official applied the substantial evidence
standard to his review of the removal action. IAF, Tab 7 at 133. After the
issuance of the initial decision in this matter, the U.S. Court of Appeals for the
Federal Circuit decided Rodriguez v. Department of Veterans Affairs , 8 F.4th
8 Under this standard, an appellant must show that (1) he engaged in protected activity;
(2) the accused official knew of the activity; (3) the adverse action under review could
have been retaliation under the circumstances; and (4) there was a genuine nexus
between the alleged retaliation and the adverse action. See Warren v. Department of the
Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986); Mattison v. Department of Veterans
Affairs, 123 M.S.P.R. 492, ¶ 8 (2016).
9 The administrative judge in that appeal did not adjudicate this claim because she
found that it was not properly raised. Holmes v. Department of Veterans Affairs , MSPB
Docket No. AT-0752-14-0278-I-1, Initial Decision at 2 n.2 (Feb. 24, 2016). 9
1290 (Fed. Cir. 2021). In Rodriguez, 8 F.4th at 1296-1301, the court found that
the agency had erred by applying the substantial evidence standard of proof to its
internal review of a disciplinary action under 38 U.S.C. § 714. The court found
that substantial evidence is the standard of review to be applied by the Board, not
the agency, and that the agency’s deciding official must apply the preponderance
of the evidence burden of proof to “determine” whether the appellant’s
“performance or misconduct . . . warrants” the action at issue. Semenov,
2023 MSPB 16, ¶ 21 (quoting Rodriguez, 8 F.4th at 1298-1301 (quoting
38 U.S.C. § 714(a)(1))); see Bryant v. Department of Veterans Affairs , 26 F.4th
1344, 1347 (Fed. Cir. 2022) (agreeing with a petitioner that the agency’s decision
was “legally flawed” when the deciding official found the charge proved merely
by substantial evidence rather than preponderant evidence, as required under
Rodriguez).
¶17The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Semenov, 2023 MSPB 16, ¶ 22.
The administrative judge and the parties did not have the benefit of Rodriguez or
the Board’s application of it in Semenov when developing the record. Therefore,
we are unable to address the impact of those decisions on this appeal.
Accordingly, on remand, the administrative judge shall adjudicate whether the
agency’s application of the substantial evidence standard of proof was harmful
error. See id., ¶¶ 22-24 (finding it appropriate to apply the harmful error standard
from 5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C. § 714).
¶18We must also remand this appeal on the issue of penalty. As noted above,
the administrative judge did not address the issue of penalty, noting only that
38 U.S.C. § 714(d)(2)(B) prohibits the Board from mitigating the agency’s chosen
penalty. ID at 3 & n.2. The appellant did not challenge the administrative
judge’s handling of the penalty on review. PFR File, Tab 1. However, following
the issuance of the initial decision, the Federal Circuit issued Sayers v.
Department of Veterans Affairs , 954 F.3d 1370 (Fed. Cir. 2020), wherein it10
clarified that, while the Board may not mitigate the penalty, 38 U.S.C. § 714
nevertheless “requires the Board to review for substantial evidence the entirety of
the [agency’s] removal decision—including the penalty—rather than merely
confirming that the record contains substantial evidence that the alleged conduct
leading to the adverse action actually occurred.” Sayers, 990 F.3d at 1379; see
Semenov, 2023 MSPB 16, ¶ 45. The Federal Circuit later explained in Brenner v.
Department of Veterans Affairs , 990 F.3d 1313, 1323-27 (Fed. Cir. 2021), that the
Board’s review must include the agency’s penalty determination whether the
action is based on misconduct or performance. See Semenov, 2023 MSPB 16,
¶ 45. Finally, the Federal Circuit also found in Connor v. Department of Veterans
Affairs, 8 F.4th 1319, 1325-26 (Fed. Cir. 2021), that the agency and the Board
must still apply the Douglas factors to the selection and review of penalties in
disciplinary actions taken under 38 U.S.C. § 714. See Semenov, 2023 MSPB 16,
¶ 49.
¶19Because the administrative judge did not address the Douglas factors, and it
is unclear from the record to what extent, if any, the agency deciding official
considered them, those issues must be addressed on remand. On remand, the
administrative judge should permit the parties to submit additional evidence and
argument on the penalty issue. See id., ¶ 50. In reviewing the penalty, the
administrative judge should determine whether the agency proved by substantial
evidence that it properly applied the Douglas factors and whether the agency’s
penalty selection was reasonable and, if not, he should remand the appellant’s
removal to the agency for a new decision on the appropriate penalty.10 See id.
(citing Connor, 8 F.4th at 1326-27; Sayers, 954 F.3d at 1375-76, 1379).
10 If remanded to the agency, the agency should be mindful of its obligations to provide
the appellant with the necessary due process. See Brenner, 990 F.3d at 1324 (observing
that the VA Accountability Act maintains due process protections for employees); Ward
v. U.S. Postal Service , 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal
Deposit Insurance Corporation , 179 F.3d 1368, 1375-77 (Fed. Cir. 1999).11
ORDER
¶20For the reasons discussed above, we remand this appeal to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.11
As outlined above, the administrative judge shall address whether the agency’s
error in applying the substantial evidence burden of proof to its action was
harmful. See Semenov, 2023 MSPB 16, ¶ 24. If the administrative judge
determines that the agency’s error in applying the incorrect burden of proof was
not harmful, then he shall determine whether the agency proved by substantial
evidence that it applied the relevant Douglas factors, and that the penalty was
reasonable. If he determines that the agency did not properly apply the relevant
Douglas factors and that the agency’s penalty was not reasonable, he shall
remand the appellant’s removal to the agency for a new decision on the
appropriate penalty. The new initial decision shall also address the appellant’s
affirmative defense of reprisal for filing a Board appeal using the standard set
forth in Pridgen. The administrative judge may, if appropriate, incorporate into
the remand decision his prior findings concerning the charges and the affirmative
11 The administrative judge shall provide the parties with an opportunity to present
evidence and argument addressing the issues on remand. He shall hold a hearing
limited to the issues on remand if one is requested by the appellant. 5 U.S.C. § 7701(a)
(1); see Semenov, 2022 MSPB 16, ¶ 24 (instructing the administrative judge to hold a
supplemental hearing addressing whether the agency’s use of the substantial evidence
standard in a 38 U.S.C. § 714 removal decision constituted harmful error). 12
defenses of whistleblower reprisal and discrimination based on military status,
consistent with this Remand Order.12
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
12 Regardless of his findings on the matters for which this appeal is being remanded, if
any argument or evidence adduced on remand affects the administrative judge’s prior
analysis of the merits of this appeal or the appellant’s affirmative defenses of reprisal
for whistleblowing activity and discrimination based on the appellant’s military status,
he should address such argument or evidence in the remand decision. See Semenov,
2023 MSPB 16, ¶ 25. 13 | Holmes_Timothy_T_AT-0714-19-0581-I-1_Remand_Order.pdf | 2024-09-16 | TIMOTHY T. HOLMES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0714-19-0581-I-1, September 16, 2024 | AT-0714-19-0581-I-1 | NP |
508 | https://www.mspb.gov/decisions/nonprecedential/Remillard_MauricePH-0752-20-0259-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAURICE REMILLARD,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-0752-20-0259-I-1
DATE: September 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jeremy R. Stephens , Esquire, Atlanta, Georgia, for the appellant.
Barbara M. Dale , Esquire, Newport, Rhode Island, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal decision. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clearly state that the appellant was not a qualified individual with
a disability and supplement the analysis of this finding, and to VACATE the
administrative judge’s alternative basis for concluding that the appellant failed to
prove that the agency denied him reasonable accommodation, we AFFIRM the
initial decision.
BACKGROUND
The appellant was a Lead Firefighter with the agency’s Fire and Emergency
Services division in Groton, Connecticut. Initial Appeal File (IAF), Tab 6 at 6.
On October 18, 2019, the appellant scraped his thumb “dealing with an issue with
[a] Ladder Truck [that was] going out of service,” and put a large bandage on his
thumb to stop the bleeding. IAF, Tab 6 at 62, Tab 23 at 9. According to the
appellant, during a subsequent verbal exchange with a coworker, his coworker
said, in a condescending manner, “that’s a pretty big Band-Aid for a scrape.”
IAF, Tab 6 at 62. The appellant responded to this by putting both his hands
around the coworker’s throat. Id. The appellant admitted doing so in a
subsequent investigation by the agency. Id. at 60, 62.
The agency proposed the appellant’s removal for this incident, charging
him with conduct unbecoming. Id. at 18-19, 56. The appellant responded to the
proposal in writing asserting, among other things, that he was subsequently2
diagnosed with anxiety, for which he had begun treatment. Id. at 13, 15, 23,
28-29.
After considering the appellant’s response, the deciding official sustained
the charge and the penalty of removal. Id. at 7-9. The agency removed the
appellant effective March 28, 2020. Id. at 6, 8. The appellant filed the instant
appeal of his removal to the Board. IAF, Tab 1 at 11-14. He disputed the charge
and alleged that the penalty of removal was too severe. Id. at 11-23. He further
alleged disability discrimination because the agency failed to provide a
reasonable accommodation for his anxiety. Id. at 23-25.
After holding a hearing, the administrative judge issued an initial decision
affirming the appellant’s removal. IAF, Tab 28, Hearing Compact Disc (HCD),
Tab 31, Initial Decision (ID) at 1, 6. She found that the agency proved its charge,
noting that the appellant admitted to engaging in the conduct as alleged. ID at 5.
She also determined that the appellant failed to establish a prima facie case of
failure to accommodate his disability. Id. Specifically, she held that the
appellant failed to show that his medical condition was “sufficiently severe or
pervasive to constitute a disability under the law.” ID at 5-6. She further held
that the appellant was not diagnosed with anxiety until after the agency proposed
his removal, did not request an accommodation at any time, and did not identify
any accommodation that would have prevented him from having similar violent
outbursts in the future. ID at 6. The administrative judge then held that the
deciding official properly considered the relevant factors in determining the
penalty, and found that the penalty of removal was not unreasonable. ID at 5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He asserts that the administrative judge abused her discretion when
she limited his testimony regarding evidence of a disparate penalty and the
agency’s failure to accommodate his disability. Id. at 11-13. He repeats his
argument that the penalty of removal is too severe, and asserts that the
administrative judge failed to consider various mitigating factors. Id. at 14-16.3
He further challenges the administrative judge’s finding that he failed to establish
a prima facie case of failure to accommodate. Id. at 17-20. Specifically, he
re-raises his argument that the agency should have known about his disability and
offered him a reasonable accommodation. Id. at 19-20. The agency has
responded to the petition for review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly held that the agency proved the charge of
conduct unbecoming.
The administrative judge here held that the appellant admitted to
committing the misconduct as specified and thus the agency met its burden to
establish the charge by preponderant evidence. ID at 5. The parties do not
challenge this finding on review, and we discern no reason to disturb it. See Cole
v. Department of the Air Force , 120 M.S.P.R. 640, ¶ 9 (2014) (explaining that an
appellant’s admission can suffice as proof of a charge); see also Canada v.
Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9 (2010) (finding that, in
order to prove a charge of conduct unbecoming, the agency is required to
demonstrate that the appellant engaged in the underlying conduct alleged in
support of the broad label).
We affirm as modified the administrative judge’s finding that the appellant failed
to prove his affirmative defense of failure to reasonably accommodate his
disability.
The appellant argued below that the agency’s failure to accommodate his
mental health conditions led to the misconduct that resulted in his removal. IAF,
Tab 25 at 4-9. The administrative judge found that the appellant failed to prove a
prima facie case of failure to accommodate his disability. ID at 5-6. The
appellant has re-raised this claim on review. PFR File, Tab 1 at 17-20.
An appellant in a removal appeal who raises the affirmative defense of
disability discrimination has the burden of proving the defense by a
preponderance of the evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). In the case of an4
alleged failure to provide reasonable accommodation, this includes the burden of
proving that he is a qualified individual with a disability, i.e., that he can perform
the essential duties of his position or one he desires with or without reasonable
accommodation. Haas v. Department of Homeland Security , 2022 MSPB 36,
¶¶ 28-29. The administrative judge implicitly found that the appellant was not a
qualified individual with a disability because he “failed to identify any
accommodation that would have been effective in preventing the charged
misconduct, or any future violent outbursts.” ID at 6. We agree as modified to
clarify and supplement this analysis.
Because the appellant was not otherwise qualified, the agency was
not obligated to accommodate him.
The appellant argues, both below and on review, that he is a qualified
individual with a disability and the agency should have initiated an interactive
process with him prior to the October 18, 2019 incident, based on his previous
misconduct. IAF, Tab 25 at 7-8; PFR File, Tab 1 at 19-20.
An employee generally has a responsibility to inform his employer that he
needs accommodation for a medical condition. Paris v. Department of the
Treasury, 104 M.S.P.R. 331, ¶ 17 (2006); Equal Employment Opportunity
Commission (EEOC), Enforcement Guidance on Reasonable Accommodation and
Undue Hardship under the [Americans with Disabilities Act], Notice No. 915.002
(EEOC Enforcement Guidance), Question 40 (Oct. 17, 2002),
https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-
accommodation-and-undue-hardship-under-ada (last visited Sept. 16, 2024).
Once the employee has requested accommodation, the employer must engage in
the interactive process in an effort to determine an appropriate accommodation.
Paris, 104 M.S.P.R. 331, ¶ 17. However, the EEOC has provided guidance
regarding an employer’s obligation to provide reasonable accommodation that
recognizes an exception. Specifically, an employer “should initiate the
reasonable accommodation interactive process without being asked if the5
employer: (1) knows that the employee has a disability, (2) knows, or has reason
to know, that the employee is experiencing workplace problems because of the
disability, and (3) knows, or has reason to know, that the disability prevents the
employee from requesting a reasonable accommodation.” EEOC Enforcement
Guidance, Question 40.
The appellant here argues that, leading up to the incident in question, his
second-level supervisor had received several complaints regarding the appellant
by other employees. PFR File, Tab 1 at 19. He testified that he informally told at
least two individuals, including the Fire Chief, that he was frequently tired and
irritable. HCD at 12:00 (testimony of the appellant). He further alleges that,
after the incident here, his second-level supervisor stated to another agency
official that he had a “growing case” against the appellant and “growing
documentation of [his] behavior.” PFR File, Tab 1 at 19 . The appellant asserts,
therefore, that his supervisors had reason to know that he suffered from a
disability. Id. at 19-20. Thus, because management never asked him if he needed
a reasonable accommodation, the agency did not follow the appropriate steps of
initiating the reasonable accommodation interactive process. Id. He asserts that,
had the agency begun the interactive process, it would have determined he could
work as long as he continued seeking treatment for anxiety. Id. at 18-19. We are
not persuaded.
Regardless of any obligation it has to initiate the interactive process, an
agency is never required to excuse a disabled employee’s violation of a uniformly
applied job-related rule of conduct, even if caused by his disability. Fitzgerald v.
Department of Defense , 85 M.S.P.R. 463, ¶ 4 (2000); EEOC Enforcement
Guidance, Question 35. Generally, employees who commit misconduct because
of their alleged disabilities are not considered otherwise qualified. Fitzgerald,
85 M.S.P.R. 463, ¶ 4. Accordingly, we find that the agency had no obligation to
accommodate the appellant and the administrative judge properly determined that
he did not prove his defense of failure to accommodate.6
The administrative judge here additionally held that the appellant failed to
demonstrate by preponderant evidence that his medical condition was
“sufficiently severe or pervasive to constitute a disability under the law.” ID
at 5-6. Because we find that the appellant failed to prove that the agency was
obligated to accommodate him, we vacate this alternative finding as unnecessary.
We therefore decline to address the appellant’s arguments on this issue.2 PFR
File, Tab 1 at 17.
The administrative judge correctly held that the deciding official considered the
relevant factors and that the penalty of removal was reasonable.
In addition to proving its charge, an agency must establish a nexus between
the action and the efficiency of the service. Hall v. Department of Defense ,
117 M.S.P.R. 687, ¶ 6 (2012). The administrative judge did not address this
issue, and the parties have not raised it on review. We find that the agency met
its nexus requirement because the appellant’s misconduct took place at work. See
Parker v. U.S. Postal Service , 819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding
sufficient nexus between an employee’s conduct and the efficiency of the service
when the conduct occurred in part at work). Thus, any error by the administrative
judge in addressing the issue was harmless. See Panter v. Department of the Air
Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
The appellant on review argues that the penalty of removal was too severe,
the administrative judge failed to consider various mitigating factors, and the
administrative judge abused her discretion in limiting testimony about comparator
2 The appellant additionally argues, citing Peru v. Department of Justice , 22 M.S.P.R.
52, 54-55 (1984), that the agency was required to offer him rehabilitative assistance
prior to initiating any disciplinary action. PFR File, Tab 1 at 17. We are unpersuaded.
Peru dealt with rehabilitative assistance for alcoholism and, in any event, an agency’s
obligation to offer this assistance was subsequently eliminated by statute. 42 U.S.C.
§ 12114(c)(4); Kimble v. Department of the Navy , 70 M.S.P.R. 617, 620-23 (1996);
Peru, 22 M.S.P.R. at 55. Thus, we find it inapplicable to the case at hand. 7
employees. PFR File, Tab 1 at 11-12, 14-16. The administrative judge held that
the deciding official considered the relevant factors and that the penalty of
removal was reasonable. ID at 5. We agree.
The Board will review an agency-imposed penalty to determine if the
agency considered all the relevant factors. Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 306 (1981). In reviewing an agency-imposed penalty, the Board
must give due weight to the agency’s primary discretion in maintaining employee
discipline and efficiency; the Board’s function is not to displace management’s
responsibility, but to ensure that managerial judgment has been properly
exercised within tolerable limits of reasonableness. Id. at 302.
The administrative judge here held that the deciding official considered the
relevant mitigating and aggravating factors, including the appellant’s anxiety. ID
at 5. The appellant argues on review that the administrative judge failed to
mention or consider certain mitigating factors in the initial decision. PFR File,
Tab 1 at 15-16. We discern no error by the administrative judge.
The appellant here only challenges the administrative judge’s
determinations. Id. However, as indicated above, her responsibility was to
ensure the agency properly weighed the relevant factors, not to reweigh them
herself. See Douglas, 5 M.S.P.R. at 302, 306. Here, the administrative judge
determined that the deciding official had done so, and that the penalty of removal
was reasonable. ID at 5. Her failure to mention all of the evidence of record
does not mean that she did not consider it in reaching her decision. Marques v.
Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d,
776 F.2d 1062 (Fed. Cir. 1985) (Table). Therefore, the appellant’s arguments do
not provide a basis to grant review.
To the extent the appellant is arguing that the deciding official failed to
consider all of the relevant Douglas factors, we are similarly unpersuaded. A
deciding official need not show that he considered all the mitigating factors, and
the Board will independently weigh the relevant factors only if the deciding8
official failed to demonstrate that he considered any specific, relevant mitigating
factors before deciding on a penalty. Batara v. Department of the Navy ,
123 M.S.P.R. 278, ¶ 5 (2016). The appellant on review lists numerous mitigating
factors the deciding official apparently failed to consider. PFR File, Tab 1 at 15.
Specifically, he claims the incident was caused by high tensions and frustrations
in the department on the day of the incident, which exacerbated his anxiety. Id.
He also notes his lengthy Federal career with no prior discipline and consistent
fully satisfactory ratings, as well as his cooperation with the agency’s
investigation and his honesty throughout the process. Id. at 15-16. He further
explains several personal problems he had been dealing with at the time of the
incident, including familial health problems and a friend who recently died by
suicide. Id. at 16. Finally, he notes that he has sought treatment for his anxiety
and continues to seek counseling to deter future problems. Id. The appellant
raised each of these mitigating factors in his responses to the proposed removal.
IAF, Tab 6 at 13-15, 25-29.
The deciding official considered these responses, including the appellant’s
employment record, length of service, and lack of prior discipline. Id. at 7-8;
HCD at 49:55, 54:35 (testimony of the deciding official). We note that the
deciding official’s Douglas factor worksheet attached to the removal decision
listed “N/A” when considering mitigating factors such as mental impairment or
unusual job tensions. IAF, Tab 6 at 12. At the hearing, however, he testified that
he considered all mitigating factors raised by the appellant in response to the
proposed removal, including the unusual job tensions, problems at home, and his
mental condition, when determining the penalty. HCD at 49:30, 54:20 (testimony
of the deciding official). Moreover, he indicated that he considered the
appellant’s assertion that he was seeking treatment for his mental condition.
HCD at 54:47 (testimony of the deciding official). He testified, however, that he
found these factors insufficient to mitigate the penalty in light of the seriousness
of the offense and “the level of stress under which a firefighter performs.” HCD9
at 49:30, 55:11 (testimony of the deciding official); cf. O’Lague v. Department of
Veterans Affairs , 123 M.S.P.R. 340, ¶ 20 (2016) (recognizing that law
enforcement officers may be held to a higher standard of conduct than other
Federal employees), aff’d per curiam , 698 F. App’x 1034 (Fed. Cir. 2017).
Accordingly, we discern no error in the administrative judge’s conclusion that the
deciding official properly considered the relevant mitigating and aggravating
factors in determining the appropriate penalty. Indeed, the Board has found
removal appropriate in similar circumstances. See Mingledough v. Department of
Veterans Affairs , 88 M.S.P.R. 452, ¶¶ 11-16 (2001) (finding the penalty of
removal reasonable when the appellant’s misconduct included engaging in a
physical altercation with agency police officers despite medical evidence that he
suffered from an anxiety disorder).
The appellant further asserts on review that his coworker did not sustain
any serious injuries and did not press charges after the incident. PFR File, Tab 1
at 15. The appellant has not claimed he raised these arguments to the deciding
official or before the administrative judge, and they are not in his written
response to the proposed removal. IAF, Tab 6 at 13-15, 23-29. His closing
statement references only that he did not “inten[d] to cause serious bodily injury”
to his coworker; he did not claim that no such injury occurred or that the deciding
official failed to consider that fact. IAF, Tab 29 at 5. This information regarding
his coworker was available before the record closed below. IAF, Tab 6 at 64; see
Norris v. Securities and Exchange Commission , 675 F.3d 1349, 1355-57 (Fed.
Cir. 2012) (finding that, in assessing whether the penalty was reasonable, the
Board must consider new, post -removal mitigation evidence that was not
available to the agency); see also Clay v. Department of the Army , 123 M.S.P.R.
245, ¶ 6 (2016) (reflecting that the Board generally will not consider an argument
raised for the first time in a petition for review absent a showing that it is based
on new and material evidence not previously available despite the party’s due
diligence). Accordingly, we discern no basis to disturb the administrative judge’s10
determination that the penalty of removal was within the tolerable bounds of
reasonableness.
The administrative judge did not abuse her discretion in limiting the testimony
regarding reasonable accommodation or the consistency of the penalty.
The appellant argues on review that the administrative judge abused her
discretion in cutting his testimony short. PFR File, Tab 1 at 13. We are not
persuaded. An administrative judge has wide discretion under the Board’s
regulations to exclude testimony she believes would be irrelevant, immaterial, or
unduly repetitious. Parker v. Department of Veterans Affairs , 122 M.S.P.R. 353,
¶ 21 (2015). In order to obtain reversal of an initial decision on the ground that
the administrative judge abused her discretion, the petitioning party must show
that relevant evidence, which would have affected the outcome, was disallowed.
Id.
As an initial matter, it is not clear that the appellant was prevented from
testifying about why the agency should have known he required an
accommodation or even about his medical condition more generally. The
appellant testified that he informally told at least two individuals, including the
Fire Chief, that he was frequently tired and irritable. HCD at 12:00 (testimony of
the appellant). He further testified that, if the agency saw a change in his work
level or interactions with coworkers, it should have addressed it with him. HCD
at 21:00 (testimony of the appellant). Finally, he confirmed in his testimony that
he never requested a reasonable accommodation, and did not receive a formal
diagnosis until after the incident in question. HCD at 18:35, 27:00 (testimony of
the appellant). After this line of questioning, the appellant’s representative stated
that he had no further questions about whether the agency should have known
about the appellant’s disability. HCD at 21:30 (statement of the appellant’s
representative). It was only after the appellant’s testimony during his case in
chief concluded that the administrative judge indicated that she would take no11
more testimony on his reasonable accommodation defense because it failed “as a
matter of law.” HCD at 29:00 (statement of the administrative judge).
Notwithstanding this statement, the administrative judge permitted the
appellant’s attorney to recall him later during the hearing. HCD at 1:45:00
(administrative judge’s statement on record). During this testimony, the appellant
testified again about his medical condition. HCD at 1:53:00, 1:58:00 (testimony
of the appellant). For example, he testified about his diagnosis, treatment, and
progress. HCD at 1:58:00 (testimony of the appellant). He also testified about
his belief that he could perform as a nonsupervisory firefighter. HCD at 2:00:00
(testimony of the appellant).
Further, in light of our finding above that the agency had no obligation to
accommodate the appellant because he was not qualified to perform his duties, we
find that the administrative judge did not abuse her discretion to the extent she
limited testimony on the agency’s obligation to initiate the interactive process.
See Fitzgerald, 85 M.S.P.R. 463, ¶ 4 (finding an agency is never required to
excuse a disabled employee’s violation of a uniformly applied job -related rule of
conduct, even if caused by his disability). Thus, regardless of whether the
appellant could have elicited testimony that the agency should have known he
required accommodation, he nonetheless could not have established his
affirmative defense. See id. (finding employees who commit misconduct because
of their alleged disabilities generally are not considered otherwise qualified).
The appellant additionally argues on review that the administrative judge
abused her discretion by limiting the deciding official’s testimony about
comparator employees and denying witnesses who could testify regarding other
physical altercations that did not result in removal. PFR File, Tab 1 at 11-12.
We disagree.
According to the appellant, he was prevented from eliciting testimony from
the deciding official regarding his knowledge of an allegedly similar incident in
which the coworker whose neck the appellant sought to squeeze had violated a12
domestic restraining order. Id. When the appellant’s representative began to
question the deciding official about the coworker, the administrative judge
stopped the line of questioning, finding that the coworker was not a comparator
because his alleged off -duty conduct that did not involve another agency
employee. HCD at 1:06:00 (statement of the administrative judge).
It is well settled that among the factors an agency should consider in
setting the penalty for misconduct is “consistency of the penalty with those
imposed upon other employees for the same or similar offenses.” Douglas,
5 M.S.P.R. at 305. Although the universe of potential comparators will vary from
case to case, it should be limited to those employees whose misconduct and/or
other circumstances closely resemble those of the appellant. Singh v. U.S. Postal
Service, 2022 MSPB 15, ¶ 13. We agree with the administrative judge that the
coworker is not similarly situated for consistency of the penalty analysis
purposes. The appellant here engaged in a physical altercation against a
coworker while on duty. The coworker, on the contrary, allegedly violated a
restraining order while off duty. PFR File, Tab 1 at 12. The alleged misconduct
of violating the restraining order is not similar to the appellant’s misconduct in
the case at hand. See Singh, 2022 MSPB 15, ¶ 17 (finding that a consistency of
the penalty analysis should not extend beyond the same or similar offenses).
Moreover, the deciding official here stated in his Douglas factor analysis that he
was unaware of similarly situated employees. IAF, Tab 6 at 11. He further
testified that he was unaware of any comparator who similarly assaulted a
coworker while on duty who received a lesser penalty. HCD at 57:00 (testimony
of the deciding official). Because testimony regarding the coworker’s alleged
off-duty conduct was not relevant to a consistency of the penalty determination,
we find that the administrative judge did not abuse her discretion in disallowing
the line of questioning.
The appellant additionally alleges that the administrative judge abused her
discretion by denying his request to call two witnesses, the coworker and another13
firefighter, to testify on the penalty issue. PFR File, Tab 1 at 12. The
administrative judge denied both witnesses, finding their testimony not relevant.
HCD at 1:16 (statement of the administrative judge granting the agency’s motion
in limine); IAF, Tab 27. Neither witness was proffered by either party to testify
regarding their awareness of other physical altercations that resulted in lesser
penalties. IAF, Tab 21 at 10, Tab 22 at 9, Tab 23 at 14. Further, as it pertains to
the coworker, as discussed above, he was not similarly situated to the appellant.3
Thus, any testimony from him regarding his conduct or lack of discipline as
identified by the appellant is not relevant to the appellant’s penalty analysis and
the administrative judge did not abuse her discretion by excluding it. In addition,
the consistency of the penalty with those imposed on other employees for the
same or similar offenses is only one of many factors to be considered in
determining the appropriate penalty, and is not necessarily outcome
determinative. Singh, 2022 MSPB 15, ¶ 18; Douglas, 5 M.S.P.R. at 305-06.
Accordingly, the administrative judge did not abuse her discretion in denying
these witnesses. See Franco, 27 M.S.P.R. at 325.
3 The appellant submits the coworker’s deposition transcript, in which he discussed the
restraining order incident and resulting discipline. PFR File, Tab 1 at 22-30. Because
it is in the record below, this is not new evidence warranting review. IAF, Tab 23
at 57-65; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980)
(explaining that evidence submitted on review that was included in the record below
and considered by the administrative judge is not new); see also 5 C.F.R. § 1201.115(d)
(providing that the Board may grant a petition for review based on new and material
evidence that was not available when the record closed below despite the petitioner’s
due diligence). In addition, the information contained therein does not alter our
conclusion that the coworker was not similarly situated for consistency of the penalty
purposes. See Singh, 2022 MSPB 15, ¶ 17. Therefore, we decline to consider the
transcript further.14
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any16
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s17
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Remillard_MauricePH-0752-20-0259-I-1_Final_Order.pdf | 2024-09-16 | MAURICE REMILLARD v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-0752-20-0259-I-1, September 16, 2024 | PH-0752-20-0259-I-1 | NP |
509 | https://www.mspb.gov/decisions/nonprecedential/Howell_Paul_R_SF-1221-21-0356-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL R. HOWELL,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-1221-21-0356-W-1
DATE: September 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul R. Howell , Celeste, Texas, pro se.
Pacific Region , Fort Shafter, Hawaii, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action appeal as untimely filed. On petition for
review, the appellant argues that he did not file his appeal on time because the
agency led him to believe that it was already addressing the concerns that he had
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
raised in his whistleblower complaint. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that,
despite the petitioner’s due diligence, was not available when the record closed.
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: _____________________ _________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Howell_Paul_R_SF-1221-21-0356-W-1_Final_Order.pdf | 2024-09-16 | PAUL R. HOWELL v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-1221-21-0356-W-1, September 16, 2024 | SF-1221-21-0356-W-1 | NP |
510 | https://www.mspb.gov/decisions/nonprecedential/Jones_Darin_A_DC-315I-12-0847-R-1__2910216.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARIN A. JONES,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-315I-12-0847-R-1
DATE: September 16, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Morris E. Fischer , Esquire, Silver Spring, Maryland, for the appellant.
Gail Serenco , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a request to reopen his termination appeal, which
was dismissed for lack of jurisdiction. For the reasons set forth below, we DENY
the appellant’s request to reopen.
In September 2012, the appellant filed a Board appeal challenging his
termination and raising discrimination and retaliation claims. MSPB Docket
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).
No. DC-315I-12-0847-I-1, Initial Appeal File (IAF), Tab 1. The administrative
judge dismissed the appeal for lack of jurisdiction, finding that the appellant was
not preference eligible and therefore did not have adverse action appeal rights
before the Board. IAF, Tab 10, Initial Decision. The appellant filed a petition
for review of the initial decision, but the Board denied his petition by final order
in October 2013. Jones v. Department of Justice , MSPB Docket No. DC-315I-12-
0847-I-1, Final Order (Oct. 28, 2013). The appellant unsuccessfully sought
reconsideration of the Board’s final order in November 2013. He also
unsuccessfully requested reopening of his appeal in April 2015 and January 2016.
In addition, the appellant has unsuccessfully pursued his claims in Federal court.
He filed his most recent reopening request in December 2019, arguing that
reopening is warranted in light of the U.S. Supreme Court’s decision in Perry v.
Merit Systems Protection Board , 582 U.S. 420 (2017). Request to Reopen File,
Tab 1.
The Board may at any time reopen any appeal in which it has issued a final
order or in which an initial decision has become the Board’s final decision by
operation of law. The Board will exercise its discretion to reopen an appeal only
in unusual or extraordinary circumstances and generally within a short period of
time after the decision becomes final. 5 C.F.R. § 1201.118. Such a short period
of time is usually measured in weeks, not years. Jennings v. Social Security
Administration, 123 M.S.P.R. 577, ¶ 17 (2016). In deciding whether to reopen a
closed appeal, the Board will balance the desirability of finality against the public
interest in reaching the correct result. Id.
The Board has held that reopening may be appropriate when there is a clear
and material legal error generally confined to a conflict between the holding of
the decision and a controlling precedent or statute, either because of an oversight
or a change in the controlling law between the date of the original decision and
any reopening request. Hayes v. Department of the Army , 106 M.S.P.R. 132, ¶ 6
(2007).2
The appellant argues that Perry constitutes a change in law that warrants
reconsideration of the Board’s final decision, but he filed this reopening request
more than 2 years after Perry was decided, almost 4 years after the Supreme
Court denied his petition for certiorari in his direct appeal from the Board’s
decision, and more than 6 years after the Board issued its decision. We find that
reopening is not warranted at this late date. See Marshall v. Government Printing
Office, 43 M.S.P.R. 346, 350-51 (1990) (denying a motion to reopen an appeal
3 years after the Board’s final decision on the merits despite intervening
precedent calling into question whether the Board had jurisdiction to consider a
disability discrimination claim against the respondent agency); see also
Moriarty v. Rhode Island Air National Guard , 56 M.S.P.R. 144, 148-50 (1992)
(denying a motion to reopen an appeal filed 18 months after the Board’s final
decision despite an intervening change in Board precedent).2
In addition to arguing based on change in law, the appellant also makes
various arguments that his appeal was simply wrongly decided. The appellant has
had multiple opportunities to raise those arguments before the Board and in court
over the past several years, and they do not provide a basis for reopening.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Although we find that we need not consider the appellant’s argument based on Perry,
we note that Perry itself would not change the outcome of the Board’s decision in this
appeal because Perry addresses only the procedural question of which Federal court has
jurisdiction to review the Board’s decisions in mixed cases. Perry, 582 U.S. at 422.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Jones_Darin_A_DC-315I-12-0847-R-1__2910216.pdf | 2024-09-16 | DARIN A. JONES v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-315I-12-0847-R-1, September 16, 2024 | DC-315I-12-0847-R-1 | NP |
511 | https://www.mspb.gov/decisions/nonprecedential/Lehner_AmeliaDC-0752-22-0591-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AMELIA LEHNER,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-22-0591-I-1
DATE: September 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Amelia Lehner , Huntingtown, Maryland, pro se.
Emeka Nwofili , Esquire, Peachtree City, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement appeal as untimely filed without good cause
shown, or, in the alternative, for lack of jurisdiction. On petition for review, the
appellant argues that her appeal was timely filed and that the agency coerced her
retirement. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2The Board has held that the existence of jurisdiction is the threshold issue
in adjudicating an appeal and ordinarily should be determined before reaching the
issue of timeliness. Rosell v. Department of Defense , 100 M.S.P.R. 594, ¶ 5
(2005). On review, the appellant asserts that the Board has jurisdiction over her
appeal because the agency made her working conditions “unbearable” and coerced
her into retirement, by, among other things, issuing a vaccine mandate, harassing
her, changing her duties, unfairly criticizing her, ignoring her medical condition,
and mishandling her reasonable accommodation request. Petition for Review
(PFR) File, Tab 1 at 8-12. As the administrative judge correctly found, the
appellant’s conclusory allegations, even if true, are insufficient to establish a
claim of involuntary retirement.2 Initial Appeal File (IAF), Tab 15, Initial
2 To the extent that the administrative judge weighed evidence or made factual findings,
the Board may not weigh evidence and resolve conflicting assertions of the parties in
determining whether the appellant has made a nonfrivolous allegation of jurisdiction.
Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). However, because we
agree with the administrative judge that the appellant’s statements do not constitute a
nonfrivolous allegation of jurisdiction, any such error does not serve as a basis for
reversal. 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.2
Decision at 15-16; see Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 32
(explaining that an employee is not guaranteed a working environment free of
stress, and dissatisfaction with work assignments, feeling of being unfairly
criticized, or unpleasant working conditions are generally not so intolerable as to
compel a reasonable person to resign). Accordingly, because the Board lacks
jurisdiction over the appellant’s involuntary retirement appeal, we need not
address her arguments regarding the timeliness of her appeal.3
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Because the appellant raised a claim of discrimination in this constructive adverse
action appeal, and the Board has now issued a Final Order dismissing the appeal for
lack of jurisdiction, the agency is now required, under EEOC regulations, to reissue a
notice under 29 C.F.R. § 1614.108(f) giving the appellant the right to elect between a
hearing before an EEOC administrative judge and an immediate final decision. See
29 C.F.R. § 1614.302(b).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 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 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
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Lehner_AmeliaDC-0752-22-0591-I-1_Final_Order.pdf | 2024-09-13 | AMELIA LEHNER v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-22-0591-I-1, September 13, 2024 | DC-0752-22-0591-I-1 | NP |
512 | https://www.mspb.gov/decisions/nonprecedential/Nevarez_DavidSF-0752-20-0219-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID NEVAREZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-20-0219-I-1
DATE: September 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ronald P. Ackerman , Esquire, Los Angeles, California, for the appellant.
Dana L. Vockley and Aurelia Moore , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. On petition for review, the appellant argues that the
administrative judge made erroneous findings of material fact. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
The appellant’s mere disagreement with the administrative judge’s
well-reasoned findings does not explain why those findings are incorrect or
otherwise establish error. Yang v. U.S. Postal Service , 115 M.S.P.R. 112, ¶ 12
(2010) (finding that arguments that constitute mere disagreement with the initial
decision do not provide a basis to grant the petition for review); Broughton v.
Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (finding
that there is no reason to disturb the administrative judge’s conclusions when the
initial decision considered the evidence as a whole, drew appropriate inferences,
and made reasoned conclusions).
The appellant argues on review that the agency action violated his due
process rights because the deciding official did not consider his oral reply to the
proposed removal. Petition for Review File, Tab 1 at 6-9. In support of this
claim, the appellant observes that the deciding official did not recall at the
hearing that the appellant had asked during his oral reply to retake the law
enforcement training that he failed. Id. The agency decision notice specifically
stated that the deciding official reviewed the appellant’s replies and the agency2
file includes a transcript of the oral reply and the written reply. Initial Appeal
File, Tab 8 at 24, 39-94. Thus, the record shows that the deciding official
considered the appellant’s oral reply, and his failure, over 15 months later, to
perfectly recall every argument made by the appellant does not demonstrate that
the oral reply was not considered. Furthermore, the deciding official testified
during the hearing that he likely would have denied a request by the appellant to
take the training over because the appellant’s failure involved a use of force
exercise and no other trainees who failed that part of the training had been
allowed to retake it.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
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: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Nevarez_DavidSF-0752-20-0219-I-1_Final_Order.pdf | 2024-09-13 | DAVID NEVAREZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-20-0219-I-1, September 13, 2024 | SF-0752-20-0219-I-1 | NP |
513 | https://www.mspb.gov/decisions/nonprecedential/McKeown_Dennis_C_SF-0752-19-0170-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENNIS C. MCKEOWN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-19-0170-I-1
DATE: September 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dennis C. McKeown , Richmond, California, pro se.
Linda M. Aragon , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his furlough action as moot. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the Board’s jurisdiction over the appeal and to expand upon
the administrative judge’s discussion of the appellant’s protected disclosures as a
part of his whistleblower reprisal affirmative defense, we AFFIRM the initial
decision.
The administrative judge determined that the agency’s furlough action
against the appellant was “completely rescinded” and that he received full back
pay and benefits for the time covered by the furlough, and she adjudicated his
affirmative defense of whistleblower reprisal based on her finding that he “met
his burden to state a cognizable claim of retaliation for whistleblowing activity in
connection with an otherwise appealable furlough action.” Initial Appeal File
(IAF), Tab 16 at 2, Tab 37, Initial Decision (ID) at 4-10. The administrative
judge mistakenly found jurisdiction over this appeal under 5 U.S.C. § 7513,
which includes furloughs of 30 days or less. See 5 U.S.C. § 7512(5). Here, the
appellant’s furlough lasted 34 days. IAF, Tab 33 at 11-14. A furlough of more
than 30 days is appealable to the Board as a reduction-in-force (RIF) action under
5 C.F.R. § 351.901. See Chandler v. Department of the Treasury , 120 M.S.P.R.
163, ¶ 5 (2013). To establish the Board’s jurisdiction over a RIF appeal, the
appellant must show that he was either furloughed for more than 30 days,
separated, or demoted by the RIF action. See Adams v. Department of Defense ,2
96 M.S.P.R. 325, ¶¶ 8-9 (2004); 5 C.F.R. § 1201.56(b)(2)(i)(A). Because the
record establishes that the appellant was furloughed for 34 days, we find that the
appellant established the Board’s jurisdiction over this appeal as an appeal of a
RIF action.
Additionally, in her adjudication of the appellant’s whistleblower reprisal
affirmative defense, the administrative judge found that the appellant’s disclosure
that he reported allegedly fraudulent billing by a Government contractor
constituted a protected disclosure under 5 U.S.C. § 2302(b)(8). ID at 6. We
emphasize here, however, that the appellant’s disclosure did not concern a
Federal agency or employee, but rather a Government contractor. IAF, Tab 13
at 1. An allegation of wrongdoing by persons not employed by the Government
may constitute a protected disclosure under the whistleblower protection statutes
when the Government’s interests and good name are implicated in the alleged
wrongdoing at issue and when the employee shows that he reasonably believed
that the information he disclosed evidenced that wrongdoing. See Covington v.
Department of the Interior , 2023 MSPB 5, ¶¶ 16, 19; Arauz v. Department of
Justice, 89 M.S.P.R. 529, ¶ 6 (2001).
Here, the nongovernmental entity is a Government contractor that appears
to perform disaster relief tasks in conjunction with the Federal Government,
including, among other things, strategically preparing for typhoons or tropical
storms by assessing physical effects on infrastructure and analyzing
vulnerabilities. IAF, Tab 13 at 35. Because these functions contribute to the
public’s perception of the Federal Emergency Management Agency’s ability to
efficiently manage national emergencies, we find that the appellant’s disclosure
implicates the Government’s interest and good name. Further, the administrative
judge found that, when the appellant made the disclosure, he reasonably believed
that the situation evidenced a gross waste of funds and that his disclosures,
therefore, constituted protected disclosures. ID at 6. Accordingly, the
administrative judge correctly found that the appellant made a protected3
disclosure, and ultimately, that he failed to establish that the furlough constituted
reprisal for whistleblowing.
Regarding the appellant’s argument on review that the administrative judge
erred in excluding testimony from two of his witnesses, the administrative judge
provided both parties with multiple opportunities to object to her ruling on
witnesses and indicated that failure to do so would waive any future right to do
so. IAF, Tab 32 at 9, Tab 34, Hearing Compact Disc (statements by the
administrative judge). The appellant did not object and, therefore, he is
precluded from challenging the administrative judge’s witness rulings on review.
See Alaniz v. U.S. Postal Service , 100 M.S.P.R. 105, ¶ 9 (2005).
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | McKeown_Dennis_C_SF-0752-19-0170-I-1_Final_Order.pdf | 2024-09-13 | DENNIS C. MCKEOWN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-19-0170-I-1, September 13, 2024 | SF-0752-19-0170-I-1 | NP |
514 | https://www.mspb.gov/decisions/nonprecedential/Hartman_AlanCH-0752-18-0595-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALAN HARTMAN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CH-0752-18-0595-I-1
DATE: September 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence Berger , Esquire, Glen Cove, New York, for the appellant.
Stephanie C. Blum , Esquire, Romulus, Michigan, for the agency.
Wilca Gallagher , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, the appellant argues that the
agency failed to prove the lack of candor and off-duty misconduct charges, that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
there was no nexus between the conduct alleged in the off-duty misconduct
charge and the efficiency of the service, and that the penalty of removal is not
reasonable. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Hartman_AlanCH-0752-18-0595-I-1_Final_Order.pdf | 2024-09-13 | ALAN HARTMAN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CH-0752-18-0595-I-1, September 13, 2024 | CH-0752-18-0595-I-1 | NP |
515 | https://www.mspb.gov/decisions/nonprecedential/Hannigan_Patrick_H_SF-0752-22-0089-C-3_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICK H. HANNIGAN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
SF-0752-22-0089-C-3
DATE: September 13, 2024
THIS ORDER IS NONPRECEDENTIAL1
Andrew J. Perlmutter , Esquire, Silver Spring, Maryland, for the appellant.
Elbridge Wright Smith , Esquire, Honolulu, Hawaii, for the appellant.
Jeffrey Baldridge , Esquire, Justin Strong , Esquire, and Kathryn Price , Los
Angeles Air Force Base, California, for the agency.
Emma Kinstedt , Esquire, El Segundo, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
ORDER
¶1The agency has filed a petition for review of the compliance initial decision,
which found the agency noncompliant with various terms of the parties’ global
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
settlement agreement. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, for the reasons discussed below, we DENY the agency’s petition for
review and AFFIRM the compliance initial decision. Except as expressly
MODIFIED by this Order to find that the agency has come into compliance with
its obligation to provide the appellant with calculations of his back pay award and
to find that the agency complied with its obligation to issue certain forms
reflecting the appellant’s voluntary retirement, we AFFIRM the compliance initial
decision and refer the petition for enforcement to the Board’s Office of General
Counsel for additional processing and issuance of a final decision. See 5 C.F.R.
§ 1201.183(c).
BACKGROUND
¶2This compliance proceeding stems from the appellant’s appeal of his
March 27, 2020 removal. Hannigan v. Department of the Air Force , MSPB
Docket No. SF-0752-22-0089-I-1, Initial Appeal File (IAF), Tab 1 at 9, 14-16.
During the pendency of that appeal, the parties engaged in mediation and reached
a settlement. IAF, Tabs 9, 15, 18. In exchange for the appellant’s agreement to
retire effective March 31, 2022, the agency agreed to, as relevant here, process2
the appellant’s back pay from the date of his removal through his March 31, 2022
retirement and expunge records related to his removal from its records. IAF,
Tab 18 at 4-6. The administrative judge issued an initial decision accepting the
settlement agreement into the record for enforcement purposes and dismissing the
appeal as settled. IAF, Tab 19, Initial Decision.
¶3On October 17, 2022, the appellant filed a petition for enforcement of the
settlement agreement. Hannigan v. Department of the Air Force , MSPB Docket
No. SF-0752-22-0089-C-1, Compliance File (C-1 CF), Tab 1. The petition for
enforcement alleged that the agency was in violation of several key provisions of
the agreement. Id. at 6-7. The administrative judge twice dismissed the appeal
without prejudice to permit the agency additional time to comply with the
agreement. C-1 CF, Tab 6, Compliance Initial Decision; Hannigan v. Department
of the Air Force , MSPB Docket No. SF-0752-22-0089-C-2, Compliance File,
Tab 5, Compliance Initial Decision.
¶4On June 15, 2023, the regional office automatically refiled the compliance
appeal. Hannigan v. Department of the Air Force , MSPB Docket No. SF-0752-
22-0089-C-3, Compliance File (C-3 CF), Tab 1. The appellant filed a status
update as to the settlement agreement’s implementation in which he alleged that
although he had received a back pay check and an accompanying leave and
earnings statement from the Defense Finance and Accounting Service (DFAS), he
had not received an accounting of how DFAS arrived at the amount on the check.
C-3 CF, Tab 5 at 3. He further alleged that the agency had not provided
documentation as to whether the agency had submitted the required paperwork to
effectuate Old Age, Survivor, and Disability Insurance (OASDI) payments to the
Social Security Administration (SSA) or to adjust his retirement annuity with the
Office of Personnel Management (OPM). Id. Finally, the appellant alleged that
the agency had not provided him with access to his updated Official Personnel
File (OPF) so that he could confirm that the agency expunged the personnel3
documents as agreed. C-3 CF, Tab 4 at 3, Tab 5 at 3. The appellant again
requested enforcement of the agreement. C-3 CF, Tab 4 at 3.
¶5On November 14, 2023, the administrative judge issued a compliance initial
decision that granted the appellant’s petition for enforcement. C-3 CF, Tab 6,
Compliance Initial Decision (CID) at 2, 6. The administrative judge found that
the agency did not demonstrate compliance with all obligations regarding the
payment of back pay or the issuance and expungement of personnel documents.
CID at 4, 6. She ordered the agency to “provide detailed and clear documentation
and data of the calculations it has made in determining the amount due the
appellant” and to “provide the appellant with the updated personnel documents
verifying the agency’s completion of the personnel actions specified in the
settlement agreement.” Id.
¶6The agency has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. On review, the agency argues that the settlement agreement
contained no term that would require it to provide an accounting of DFAS’s back
pay award to the appellant. Id. at 7. In any event, it has provided evidence that
after the compliance initial decision was issued, it supplied the appellant with
DFAS’s calculations related to back pay. Id. at 61-91. The agency also argues
that it has issued all personnel documents required by the settlement agreement.
Id. at 9. The appellant has responded to the agency’s petition for review, and the
agency has replied to the appellant’s response. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7The Board has broad authority to enforce the terms of a settlement
agreement entered into the record. Engel v. U.S. Postal Service , 114 M.S.P.R.
541, ¶ 6 (2010). Because a settlement agreement is a contract, the Board will
adjudicate an enforcement proceeding relevant to a settlement agreement in
accordance with contract law. Id. Under settled contract law, the party alleging
breach of a settlement agreement has the burden of proving such breach. Id.4
However, under case law and the Board’s regulations, the agency also has a heavy
burden of production regarding compliance. Id.; 5 C.F.R. § 1201.183(a)(1)
(i)-(iii).
We modify the compliance initial decision to find that the agency has come into
compliance with its obligation to provide a calculation of the appellant’s back pay
award.
¶8In her compliance initial decision, th e administrative judge held that
although the appellant eventually received a back pay award from DFAS, the
agency did not provide any calculations demonstrating the correctness of the
payment. CID at 5. On review, the agency argues that nothing in the four corners
of the settlement agreement required it to demonstrate how the appellant’s back
pay award was calculated. PFR File, Tab 1 at 7. The agency misunderstands its
obligation.
¶9Paragraph 2b of the parties’ settlement agreement required the agency to
“[m]ake a request of DFAS . . . to pay the appellant [back pay].” IAF, Tab 18
at 4. Irrespective of whether the four corners of the settlement agreement require
it, the Board’s regulations and case law are clear that to demonstrate compliance
with a back pay award, the agency is required to provide an explanation of how
the appellant’s back pay award was calculated. Antunes v. U.S. Postal Service ,
61 M.S.P.R. 408, 410 (1994) (holding that because an agency had not adequately
explained how it calculated the interest on a back pay award, it had not complied
with the Board’s regulations); Blanchard v. Department of Justice , 40 M.S.P.R.
513, 514-15 (1989) (stating that a submission of satisfactory evidence of
compliance by the agency must include an explanation of how it calculated the
net back pay paid to the appellant); 5 C.F.R. § 1201.183(a)(1)(i) (stating that
when one party files a petition for enforcement, the alleged noncomplying party
must file evidence of compliance, including a narrative explanation of the
calculation of back pay and other benefits, and supporting documents). 5
¶10To the extent the agency argues that it is absolved of responsibility for back
pay providing calculations because DFAS processed the back pay, we disagree.
PFR File, Tab 1 at 5-7. The agency is a military department within the
Department of Defense (DOD). 5 U.S.C. § 102. DOD, in turn, created and
directs DFAS. Defense Finance and Accounting Service, 55 Fed. Reg. 50179
(Dec. 5, 1990). The Board has previously found a military department in
noncompliance when it provided only informal back pay calculations and stated
that those calculations were not “back pay audits by DFAS and anything they
submit” would take precedence. Washington v. Department of the Navy ,
115 M.S.P.R. 599, ¶ 10 (2011).
¶11At the time of the compliance initial decision, neither the agency nor DFAS
had provided the appellant with a calculation of his back pay award. Therefore,
the administrative judge correctly found the agency noncompliant with its back
pay obligations. However, on December 14, 2023, following the issuance of the
compliance initial decision, the agency provided the appellant with various tables
and spreadsheets from DFAS, which explained how DFAS arrived at the
appellant’s back pay award. PFR File, Tab 1 at 61-91. The appellant has
acknowledged that he received these explanatory documents and does not
challenge their accuracy. PFR File, Tab 3 at 4.
¶12In response to the agency’s petition for review, the appellant alleges that the
agency has not demonstrated that it sent his OASDI payments to SSA or annuity
deductions to OPM, or that it coordinated with SSA or OPM regarding these
benefits. Id. at 5-6. In support, the appellant submits a January 1, 2024 screen
capture of his online social security earnings record, which reflects that there
were no taxed social security earnings during 2021 and 2022. Id. at 8-10. As
relevant to this argument, the back pay provision of the settlement agreement
acknowledged that processing the appellant’s back pay required adjustments for a
variety of benefits, including OASDI and the appellant’s retirement annuity. IAF,
Tab 18 at 4. It further stated that “the Agency will make full payment directly to6
OPM for . . . [r]etirement deductions.” Id. at 4-5. The administrative judge
concluded that the agency met its obligation to coordinate with OPM because the
appellant’s annuity had been adjusted. CID at 4; C-3 CF, Tab 5.
¶13The DFAS calculation of the appellant’s back pay award shows a
$27,532.56 deduction for “OPM-Annuity” and a $9,932.40 deduction for OASDI.
PFR File, Tab 1 at 68. The agency demonstrated that it took all the necessary
steps to comply with the back pay provision in the settlement agreement. Under
similar circumstances, when an appellant alleged that an agency improperly
terminated his healthcare benefits, and the agency provided evidence that it took
all steps necessary to continue the appellant’s healthcare coverage, the Board held
that the appellant’s complaints were properly addressed to the healthcare
organization, not the agency. Kolassa v. Department of the Treasury ,
59 M.S.P.R. 151, 155 -56 (1993). It is unclear what additional documentation or
evidence of compliance the appellant is seeking from the agency. If, upon
contacting OPM and SSA, the appellant discovers that his annuity was
miscalculated or his OASDI payments were not adjusted because of some
improper act or failure to act by the agency, the appellant may file a petition for
enforcement with the regional office stating with specificity the nature of the
agency’s noncompliance. See id. at 156.
¶14Accordingly, we modify the compliance initial decision to find that the
agency is now in compliance with the back pay provision of the parties’
settlement agreement.
We modify the initial decision to find that the agency has complied with its
obligation to process forms related to the appellant’s retirement but agree with
the administrative judge that the agency has not provided forms related to the
appellant’s reinstatement.
¶15Paragraphs 2a and 2e of the parties’ settlement agreement require the
agency to issue a Standard Form 52 (SF-52) reinstating the appellant effective
March 27, 2020, and then issue another SF-52 effecting his March 31, 2022
retirement. IAF, Tab 18 at 4-5. The agreement further indicated that the Air7
Force Personnel Center would issue the Standard Forms 50 (SF-50s) associated
with these actions. Id. The administrative judge found that the agency did not
provide evidence of compliance with these terms. CID at 5-6. The agency
disputes this finding on review, pointing to its “efforts” and its communications
to the appellant about those efforts. PFR File, Tab 1 at 8-9 (citing C-1 CF, Tab 4
at 22-27, 52-67). We find that the agency has provided some evidence of
compliance and modify the initial decision accordingly.
¶16The agency submitted below an SF-52 and an SF-50 processing the
appellant’s voluntary retirement effective March 31, 2022, along with emails
from the agency personnel involved in preparing them.2 C-1 CF, Tab 4 at 62-67.
When, as here an agency has produced evidence of compliance, an appellant must
rebut that evidence with specific and nonconclusory assertions of noncompliance.
Alford v. Department of Defense , 113 M.S.P.R. 629, ¶¶ 6, 10 (2010) (concerning
an agency’s alleged noncompliance with a final Board order).
¶17Following the agency’s submission of the SF-52 and SF-50 memorializing
the appellant’s voluntary retirement, he argued that “the Agency has yet to
provide [him] with the updated personnel documents showing the Agency’s
completion of the personnel actions specified in the Parties’ settlement.” C-3 CF,
Tab 5 at 3. However, he did not address the agency’s evidence, specify which
documents were missing, or provide any documentation reflecting that he
communicated to the agency that its documentation of his retirement was
insufficient. Id. In response to the agency’s petition for review, the appellant
more narrowly asserts that the agency has not “process[ed] particular personnel
forms, including a reinstatement SF-50.” PFR File, Tab 3 at 4.
¶18Based on our review of the records, we agree with the administrative judge
that the agency has not provided the SF-52 or SF-50 reinstating the appellant and
2 Although not expressly required by the agreement, the agency also provided SF-50s
reflecting that it canceled the appellant’s removal effective March 22, 2020, and
processed a within grade increase for the appellant effective February 13, 2022. C-1
CF, Tab 4 at 22-26.8
is not in compliance with that requirement of the agreement. As to the SF-50 and
SF-52 processing the appellant’s retirement, we modify the initial decision to find
that the agency provided sufficient evidence of compliance.
The agency is not in compliance with the requirement that it expunge
documentation from the appellant’s records.
¶19Paragraph 2a of the agreement also states that “the agency will promptly
expunge from its records the . . . SF-50 documenting the Appellant’s removal
dated March 27, 2020, and also expunge from its records the above reinstatement
SF-50.” IAF, Tab 18 at 4. The appellant acknowledged in the agreement that
“sometime after his retirement, his records will be transferred to the National
Personnel Records Center (NPRC)” and that he would “likely need to
communicate directly with OPM to effect the expungement.” Id. The agency
agreed to “assist as needed with that process.” Id.
¶20In her compliance initial decision, the administrative judge found that the
agency had not shown that it expunged the identified SF-50s. CID at 5 -6. The
agency argues that it does not maintain an electronic official personnel folder
(eOPF) after an employee retires. PFR File, Tab 4 at 7-8. The agency provides a
printout from the National Archives’ website stating that “OPFs are retired to the
[NPRC] within 120 days after separation from Federal employment” and
explaining who may obtain copies of an OPF and how to make a request. Id.
at 10-13. The agency extrapolates that because it is not “wholly possessed of
these records,” the appellant’s remedy is to seek his eOPF from either the
National Archives or OPM. Id. at 8.
¶21When an appellant alleges noncompliance with a settlement agreement, the
agency must produce relevant material evidence of its compliance with the
agreement or show that there was good cause for noncompliance. Allen v.
Department of Veterans Affairs , 112 M.S.P.R. 659, ¶ 7 (2009), aff’d per curiam ,
420 F. App’x 980 (Fed. Cir. 2011). Here, the agency has not done so. It does not
state or provide evidence that it transferred the appellant’s eOPF to the NPRC9
within the 120-day transfer deadline; rather, it notes that the appellant recognized
in the agreement that it would do so at some point. PFR File, Tab 1 at 7-8. And
the agency’s obligation to expunge documents extended to all of “its records,” not
just the appellant’s OPF or eOPF. IAF, Tab 18 at 4. The agency has not claimed
or provided evidence that it reviewed other records that it maintains to ensure that
the documents have been expunged.
¶22Further, to the extent that the agency argues that it is not responsible to
provide evidence of compliance because it is not wholly possessed of the
appellant’s eOPF, it is mistaken. When the allegedly noncomplying party is
“wholly possessed of the evidence” of compliance, it “has the duty of producing
all of the evidence that it has” to show compliance. Perry v. Department of the
Army, 992 F.2d 1575, 1578 (Fed. Cir. 1993). However, the opposite is not also
true. The agency’s duty to produce evidence of compliance is triggered by the
filing of a petition for enforcement. Jones v. Office of Personnel Management ,
61 M.S.P.R. 252, 254 (1994); see 5 C.F.R. § 1201.183(a)(1) (reflecting that once
a party files a petition for enforcement, the alleged noncomplying party must file
evidence of compliance or a statement showing good cause for the failure to
comply completely). An appellant is not required to request evidence of
compliance before the agency’s obligation to produce such evidence arises.
Jones, 61 M.S.P.R. at 254.
¶23More specifically, as relevant here, an agency does not comply with an
agreement to expunge records related to an appellant’s removal in exchange for
his voluntary separation by correcting only those files that the agency has on hand
while other agencies such as OPM and DFAS maintain records of the expunged
action. King v. Department of the Navy , 130 F.3d 1031, 1033-34 (Fed. Cir.
1997). Although it is not necessary for our finding of noncompliance, we observe
that the agency agreed to do more than merely expunge the appellant’s records. It
also agreed, under paragraph 2b of the settlement agreement, that it would not
communicate information regarding the appellant’s removal and reinstatement to10
third parties. IAF, Tab 18 at 5. We agree with the administrative judge that the
agency is in noncompliance with the requirement to expunge the appellant’s
removal and reinstatement SF-50s from its records.
¶24Because we have found the agency in partial 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 enforcement 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 understand the evidence of
compliance and any objections to that evidence. Thereafter, the Board will issue
a final decision fully addressing the agency’s petition for review of the
compliance initial decision3 and setting forth the parties’ further appeal rights and
the right to attorney fees, if applicable.
ORDER
¶25We ORDER the agency to submit to the Clerk of the Board within 60 days
of the date of this Order satisfactory evidence of compliance. This evidence shall
adhere to the requirements set forth in 5 C.F.R. § 1201.183(a)(6)(i), including
submission of evidence and a narrative statement of compliance. The agency’s
submission shall demonstrate that it processed the SF-52 or SF-50 reinstating the
appellant and expunged all personnel documents identified in paragraph 2a of the
parties’ settlement agreement. The agency must serve all parties with copies of
its submission.
3 The subsequent decision may incorporate the analysis and findings set forth in this
Order.11
¶26The agency’s submission should be filed under the new docket number
assigned to the compliance referral matter, MSPB Docket No.
SF-0752-22-0089-X-1. All subsequent filings should refer to the compliance
referral docket number set forth above and should be faxed to (202) 653-7130 or
mailed to the following address:
Clerk of the Board
U.S. Merit Systems Protection Board
1615 M Street, N.W.
Washington, D.C. 20419
Submissions 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.
¶27The appellant may respond to the agency’s evidence of compliance
within 20 days of the date of service of the agency’s submission. 5 C.F.R.
§ 1201.183(a)(8). If the appellant does not respond to the agency’s evidence of
compliance, the Board may assume that he is satisfied with the agency’s actions
and dismiss the petition for enforcement.
¶28The agency is reminded that, if it fails to provide adequate evidence of
compliance, the responsible agency official and the agency’s representative may be
required to appear before 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(a). The Board’s authority to
impose sanctions includes the authority to order that the responsible agency
official “shall not be entitled to receive payment for service as an
employee during any period that the order has not been complied with.” 5 U.S.C.
§ 1204(e)(2)(A).
¶29This Order does not constitute a final order and therefore is not subject to
judicial review under 5 U.S.C. § 7703(a)(1). Upon the Board’s final resolution of12
the remaining issues in this petition for enforcement, a final order shall be issued,
which shall be subject to judicial review.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Hannigan_Patrick_H_SF-0752-22-0089-C-3_Order.pdf | 2024-09-13 | PATRICK H. HANNIGAN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. SF-0752-22-0089-C-3, September 13, 2024 | SF-0752-22-0089-C-3 | NP |
516 | https://www.mspb.gov/decisions/nonprecedential/Gibby_Nathaniel_J_AT-0752-18-0498-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATHANIEL J. GIBBY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-18-0498-X-1
DATE: September 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nathaniel J Gibby , Warner Robins, Georgia, pro se.
Frank M. Wood , and Jonathan Simpson , Robins Air Force Base, Georgia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
On January 19, 2024, 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, which cancelled the appellant’s
removal, ordered the agency to pay the appellant the correct amount of back pay,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
interest on the back pay, and other benefits, and notified the appellant that he
could file a separate request for compensatory damages. Gibby v. Department of
the Air Force, MSPB Docket No. AT-0752-18-0498-C-1, Compliance File (CF),
Compliance Initial Decision (CID); Gibby v. Department of the Air Force , MSPB
Docket No. AT-0752-18-0498-I-1, Initial Appeal File, Tab 16, Initial Decision
(ID); Gibby v. Department of the Air Force , MSPB Docket No. AT-0752-18-
0498-I-1, Tab 3, Order (Sept. 6, 2023).2 For the reasons discussed below, we now
find the agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
The Board’s final decision in the underlying matter reversed the appellant’s
removal and ordered the agency to cancel the removal, retroactively restore the
appellant effective May 5, 2018, and pay him appropriate back pay, with interest,
and benefits. ID at 8-9. The appellant filed a petition for enforcement. CF,
Tab 1. On January 19, 2024, the administrative judge issued a compliance initial
decision granting the petition for enforcement and ordering the agency to provide
evidence that it had taken the compliance actions specified in the initial decision.
CID at 5.
In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the compliance actions required by the decision,
it must submit to the Office of the Clerk of the Board, within the time limit for
filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that it had
taken the actions identified in the compliance initial decision, along with
evidence establishing that it had taken those actions. CID at 6-7; 5 C.F.R.
§ 1201.183(a)(6)(i). He also informed the parties of their option to request Board
review of the compliance initial decision by filing a petition for review by
2 The July 27, 2018 initial decision became the final decision of the Board upon the
Board’s issuance, on September 6, 2023, of an order so providing because the two
Board members then in office could not agree on the disposition of the agency’s
petition for review. See 5 C.F.R. § 1200.3(b).2
February 23, 2024, the date on which the findings of noncompliance would
become final unless a petition for review was filed. CID at 7; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party petitioned for
review. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative
judge’s findings of noncompliance became final, and the appellant’s petition for
enforcement was referred to the Board for a final decision on issues of
compliance.
On March 14, 2024, the Clerk of the Board issued an acknowledgment
order directing the agency to submit evidence of compliance within 15 calendar
days of the Acknowledgement Order. Gibby v. Department of the Air Force ,
MSPB Docket No. AT-0752-18-0498-X-1, Compliance Referral File (CRF), Tab
1 at 3. The acknowledgement order also notified the appellant that he must file
any response within 20 calendar days of the agency’s submission. Id. The order
specifically informed the appellant that if he failed to file a response, the Board
might assume he was satisfied and dismiss the petition for enforcement. Id.
On March 18, 2024, the appellant filed a response to the acknowledgement
order, in which he stated that he was not currently reinstated and had not received
all of his back pay but had received his back pay for the period of May 5, 2018, to
July 27, 2018. CRF, Tab 2 at 3.
On April 1, 2024, the appellant filed a second response to the
acknowledgement order, in which he stated that he had not heard from the agency
regarding the remainder of his back pay and reinstatement of his job and
requested “compensatory pay.” CRF, Tab 3 at 3.
On April 2, 2024, the agency filed a response to the acknowledgement
order. CFR, Tab 4. The Response included calculations regarding the appellant’s
back pay and leave and stated that the appellant had been reinstated on July 27,
2018, after the initial decision in the underlying appeal, and was not due back pay
after this date. CRF, Tab 4 at 4-5, 106-15. The agency also stated that the3
appellant was removed a second time, on January 25, 2020, for excessive
absences. Id. at 5.
On April 18, 2024, the appellant submitted a response to the agency’s
filing. CRF, Tab 5. The appellant acknowledged receipt of his backpay but
alleged that when he was reinstated in 2018, he was brought back in an “interim
status,” which was different from his position prior to his removal. Id. at 3.
Further, the appellant stated that, “I acknowledge what the agency has submitted
and backpay received, but feel it is not what I deserve.” Id. at 3. He argued that
his “interim status” position did not show “good faith in retroactive
reinstatement.” Id. at 4.
ANALYSIS
The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management , 115 M.S.P.R. 65, ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal
Service, 70 M.S.P.R. 438, 443 (1996). The appellant may rebut the agency’s
evidence of compliance by making “specific, nonconclusory, and supported
assertions of continued noncompliance.” Brown v. Office of Personnel
Management, 113 M.S.P.R. 325, ¶ 5 (2010).
In this case, the agency was required to pay the appellant the correct
amount of back pay, interest on the back pay, and other benefits. The agency’s
submission included: (1) settlement data breaking down the appellant’s back pay
by pay period for the time from the appellant’s removal on May 5, 2018, to his
reinstatement on July 27, 2018; (2) a Defense Finance and Accounting Service
remedy ticket that detailed the appellant’s gross back pay, including lump sum
leave; (3) deductions including annual leave debt, taxes, and benefits; and (4)
interest on the net back pay amount. CRF, Tab 4 at 106-109. The submission
also included a settlement leave audit that set forth the calculation of the4
appellant’s annual and sick leave during the back pay period. Id. at 113-15. The
appellant does not challenge the agency’s calculation of the back pay, benefits, or
interest, and thus, we assume that the appellant is satisfied with the agency’s
compliance on this point. Likewise, the appellant stated that he received the
amounts set forth in the agency’s documentation. CRF, Tab 5 at 3.
Consequently, we find that the agency is in compliance with the administrative
judge’s January 19, 2024 compliance initial decision with respect to the
appellant’s back pay, interest, and benefits.
The Board’s order also directed the agency to cancel the appellant’s
removal and reinstate him. ID at 8-9; CID at 5. In its April 2, 2024 submission,
the agency represents that the appellant was returned to duty on July 27, 2018,
but was subsequently removed on January 25, 2020, for a second time based on
excessive absences.3 Id. at 4-5. In the appellant’s April 18, 2024 response, he
contends that he was reinstated under the same pay grade and job title in 2018,
but in “a temporary position with limits to job advancement, transfer, and
training” and was “unable to work for four months, waiting for management to
get paperwork. . . .” CRF, Tab 5 at 3.
The documentation submitted by the agency in its petition for review of the
initial decision indicates that the appellant was restored to duty July 27, 2018, in
accordance with the initial decision’s interim relief order. PFR File, Tab 1, at 11
(Standard Form 50 (SF-50) citing 5 C.F.R. § 772.102(A) as authority for
reinstatement). The job title, series, grade, and step to which the appellant was
reinstated are identical to those on the SF-50 documenting his subsequent,
unrelated removal. Compare PFR File, Tab 1, at 11, with CRF, Tab 4, at 92.
Moreover, the appellant does not contest that prior to his second removal (which
is not before the Board in this action or any other), he was restored to the
appropriate pay grade and job title. Therefore, we find that the agency properly
3 The merits of the January 24, 2020 removal are beyond the scope of this compliance
action, and the appellant has not filed an appeal of this removal with the Board. 5
restored the appellant to his position in accordance with its interim relief
obligations. See 5 U.S.C. § 7701(b)(2)(A); ID at 9.
The appellant argues that his restoration did not, in fact, provide him with
appropriate duties or advancement opportunities although it appeared to do so on
paper. Because he concedes that he was correctly restored on paper and paid
appropriately, and because he was subsequently removed for reasons beyond the
scope of this compliance action, there is no meaningful relief we can grant for his
claims that he was not given appropriate duties or advance opportunities between
July 27, 2018, and his removal. An appeal or issue is moot if there is no effective
relief the Board can grant. See Occhipinti v. Department of Justice , 61 M.S.P.R.
504, 508 (1994) (dismissing the appellant’s individual right of action appeal as
moot because the appellant had subsequently been removed and could not obtain
restoration to the agency’s rolls, and the only relief the Board could grant would
be a declaration that the appellant was temporarily treated improperly, which was
not effective relief); White v. International Boundary & Water Commission ,
59 M.S.P.R. 62, 65 (1993) (dismissing an appeal as moot because the Board could
not order the appellant’s return to the agency’s rolls when he had subsequently
been removed again, and the only relief he could obtain was a declaration that the
appellant was temporarily treated improperly, which was not effective relief).
Accordingly, we find that the appellant’s arguments on this issue do not preclude
finding the agency in compliance.
With respect to the appellant’s request for compensatory damages, the
appellant was apprised in the Board’s September 6, 2023 Order that he could file
a separate request for compensatory damages within 60 days of the order’s
issuance. Gibby, MSPB Docket No. AT-0752-18-0498-I-1, Order at 3. The
appellant did not do so; thus, we will not address the issue now, as it is beyond
the scope of these compliance proceedings.
Accordingly, for the reasons set forth above, we dismiss the appellant’s
petition for enforcement. This is the final decision of the Merit Systems6
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 RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute,
the nature of your claims determines the time limit for seeking such review and the
appropriate forum with which to file. 5 U.S.C. § 7703 (b). Although we offer the
following summary of available appeal rights, the Merit Systems Protection Board does
not provide legal advice on which option is most appropriate for your situation and the
rights described below do not represent a statement of how courts will rule regarding
which cases fall within their jurisdiction. If you wish to seek review of this final
decision, you should immediately review the law applicable to your claims and carefully
follow all filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review below to
decide which one applies to your particular case. If you have questions about whether a
particular forum is the appropriate one to review your case, you should contact that forum
for more information.
(1) Judicial review in general. As a general rule, an appellant seeking judicial
review of a final Board order must file a petition for review with the U.S. Court of
Appeals for the Federal Circuit, which must be received by the court within 60 calendar
days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the Federal
Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
Additional information about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the
court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S.
Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation for
Merit Systems Protection Board appellants before the Federal Circuit. The Board neither
endorses the services provided by any attorney nor warrants that any attorney will accept
representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of discrimination.
This option applies to you only if you have claimed that you were affected by an action
that is appealable to the Board and that such action was based, in whole or in part, on
unlawful discrimination. If so, you may obtain judicial review of this decision—
including a disposition of your discrimination claims —by filing a civil action with an
appropriate U.S. district court (not the U.S. Court of Appeals for the Federal Circuit),
within 30 calendar days after you receive this decision. 5 U.S.C. § 7703 (b)(2); see
Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a
representative in this case, and your representative receives this decision before you do,
then you must file with the district court no later than 30 calendar days after your
representative receives this decision. If the action involves a claim of discrimination
based on race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any requirement
of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C.
§ 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.8
Alternatively, you may request review by the Equal Employment Opportunity
Commission (EEOC) of your discrimination claims only, excluding all other issues .
5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of
Federal Operations within 30 calendar days after you receive this decision . 5 U.S.C. §
7702(b)(1). If you have a representative in this case, and your representative receives this
decision before you do, then you must file with the EEOC no later than 30 calendar days
after your representative receives this decision.
If you submit a request for 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 of9
appeals of competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.gov . Of particular relevance is the
court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to the U.S.
Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation for
Merit Systems Protection Board appellants before the Federal Circuit. The Board neither
endorses the services provided by any attorney nor warrants that any attorney will accept
representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.10
Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Gibby_Nathaniel_J_AT-0752-18-0498-X-1_Final_Order.pdf | 2024-09-13 | NATHANIEL J. GIBBY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-18-0498-X-1, September 13, 2024 | AT-0752-18-0498-X-1 | NP |
517 | https://www.mspb.gov/decisions/nonprecedential/Curry_LoriannCB-7121-20-0009-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORIANN CURRY,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
CB-7121-20-0009-V-1
DATE: September 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marion L. Williams , Warner Robins, Georgia, for the appellant.
Gregory Lloyd , Esquire, Robins Air Force Base, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a request for review of an arbitration decision,
which sustained the agency’s decision to suspend her for 7 days. For the reasons
discussed below, we DISMISS the appellant’s request for review for lack of
jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was employed as a Sheet Metal Mechanic at the agency’s
Robins Air Force Base in Warner Robins, Georgia. Request for Review (RFR)
File, Tab 1 at 1. According to the arbitrator, on an unspecified date in early
October 2017, the appellant’s supervisor approached her about an issue with her
work and began to explain to her what she had done wrong.2 Id. at 14-15. In
response, according to the supervisor, the appellant became disrespectful and
hostile, used profanity, threatened him, and gestured as if she was going to hit
him. Id. at 15.
On February 19, 2018, the agency issued a decision suspending the
appellant for 7 days based on the charge of disrespectful conduct. Id. at 19. The
appellant’s union grieved the 7-day suspension action, and agency management
denied the grievance. Id. at 19-21. The union then invoked arbitration on her
behalf, arguing that the appellant was “suspended for something that was not said
and treated disparately.” Id. at 25.
In an Award Summary, the arbitrator indicated that the union waived its
right to present a case and did not call any of its own witnesses. Id. at 5. She
also stated that the union waived its right to file a post-hearing brief, and that it
offered “no rebuttal, affirmative defenses, or [mitigating] circumstances in
support of its position on the [appellant’s] behalf.” Id. In the arbitrator’s
December 3, 2019 award, she summarized the appellant’s performance issues,
discussed the agency’s witnesses’ testimony concerning the October 2017
incident, and concluded that the agency presented a “prima facie case in chief.”
Id. at 12-26. Accordingly, she found that there was “no reason” to disturb the
agency’s decision regarding the grievance. Id. at 26.
2 The record contains only the arbitrator’s award, which does not clearly specify the
date this encounter occurred. RFR File, Tab 1 at 14-15. It appears undisputed,
however, that it occurred in early October 2017. Id. at 15. 2
On January 2, 2020, the appellant filed a request for review of the
arbitration decision with the Board.3 RFR File, Tab 1. The appellant’s request
included only the Board’s standard appeal form and a copy of the arbitrator’s
award. Id. The Office of the Clerk of the Board issued an acknowledgment
order, informing the appellant of what she was required to submit to formally
request the Board’s review of the arbitration decision and to establish the Board’s
jurisdiction over her request. RFR File, Tab 2. The appellant did not respond to
the acknowledgment order. As such, the record includes only the arbitrator’s
award. RFR File, Tab 1.
ANALYSIS
The Board has jurisdiction to review an arbitrator’s decision under 5 U.S.C.
§ 7121(d) when the subject matter of the grievance is one over which the Board
has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.
§ 2302(b)(1) in connection with the underlying action, and a final decision has
been issued. Sadiq v. Department of Veterans Affairs , 119 M.S.P.R. 450, ¶ 4
(2013). Although it is undisputed that a final decision has been issued, we find
that the other two conditions are not satisfied, and that the Board, therefore, lacks
jurisdiction over the appellant’s request for review of the arbitration decision.
First, the Board does not have jurisdiction over the subject matter
underlying the grievance. Under 5 U.S.C. § 7512, the Board only has jurisdiction
over suspension actions when they exceed 14 days. See 5 U.S.C. § 7512(2).
Because the agency action at issue here is a 7-day suspension, and the appellant
3 It appears that the appellant first filed an initial appeal of the arbitrator’s award with
the Board’s Atlanta Regional Office. Curry v. Department of the Air Force , MSPB
Docket No. AT-3443-20-0223-I-1, Appeal File (0223 AF), Tab 1. In that appeal, the
administrative judge issued an initial decision dismissing the appeal because it
constituted a request for review of an arbitration decision under 5 C.F.R. § 1201.55.
0223 AF, Tab 6, Initial Decision at 2. He forwarded the appeal to the Office of the
Clerk of the Board to be adjudicated in accordance with the Board’s regulations. Id.
The Office of the Clerk of the Board assigned the appeal a new case caption and the
docket number of the instant case. RFR File, Tab 2 at 1. 3
has not pointed to any other law, rule, or regulation that provides for the Board’s
jurisdiction over a 7-day suspension, we find that we are without jurisdiction over
the subject matter at issue in the appellant’s grievance. See Sadiq, 119 M.S.P.R.
450, ¶ 4; see also Gore v. Department of Labor , 101 M.S.P.R. 320, ¶ 5 (2006)
(finding that the Board lacks jurisdiction to review a request for review of an
arbitration decision when the decision does not involve a subject matter over
which the Board has jurisdiction).
Additionally, even if the Board had jurisdiction over the subject matter of
the underlying action, the appellant has failed to establish that she has alleged
discrimination under 5 U.S.C. § 2302(b)(1) in connection with the underlying
action. See Sadiq, 119 M.S.P.R. 450, ¶ 4. Although the record shows that she
alleged that she was “treated disparately,” she has not alleged that such treatment
was on the basis of a category covered by section 2302(b)(1), such as race, color,
religion, sex, national origin, age, or disability. See 5 U.S.C. § 2302(b)(1).
Moreover, the arbitrator stated that the appellant offered no affirmative defenses
or mitigating circumstances, and the appellant has not argued in her request for
review of the arbitration decision that the arbitrator erred in that categorization.
RFR File, Tab 1 at 26. Accordingly, we find that the Board also lacks
jurisdiction over this request for review of the arbitration decision because the
appellant failed to show that she has alleged discrimination under section 2302(b)
(1) in connection with her 7-day suspension. See Sadiq, 119 M.S.P.R. 450, ¶ 4;
see also Westbrook v. Department of the Air Force , 77 M.S.P.R. 149, 153 (1997)
(concluding that, when an appellant fails to raise a discrimination claim covered
by 5 U.S.C. § 2302(b)(1), the Board lacks jurisdiction over an arbitration review
request under 5 U.S.C. § 7121(d)).
Accordingly, we dismiss the appellant’s request for review of the
arbitration decision based on lack of jurisdiction. See Gore, 101 M.S.P.R. 320,
¶ 5. This is the final decision of the Merit Systems Protection Board in this
appeal. 5 C.F.R. § 1201.113(c). 4
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Curry_LoriannCB-7121-20-0009-V-1_Final_Order.pdf | 2024-09-13 | LORIANN CURRY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. CB-7121-20-0009-V-1, September 13, 2024 | CB-7121-20-0009-V-1 | NP |
518 | https://www.mspb.gov/decisions/nonprecedential/Robbins_ShawnDE-0752-19-0291-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAWN ROBBINS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-19-0291-I-1
DATE: September 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter C. Rombold , Esquire, Junction City, Kansas, for the appellant.
Eric L. Carter , Esquire, Fort Riley, Kansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action based on his failure to meet a condition of
employment (i.e., passing an annual physical ability test (PAT)). Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
We affirm the administrative judge’s finding that the agency did not wrongly
deny the appellant the opportunity to take the alternative walk test.
For the reasons set forth in the initial decision, we agree with the
administrative judge’s finding that the agency did not wrongly deny the appellant
the opportunity to take the 2-mile walk test in lieu of the 1.5-mile run test when
he twice underwent, but failed to pass, the PAT in December 2018 and
March 2019. Initial Appeal File (IAF), Tab 33, Initial Decision (ID) at 2, 4-9. In
particular, the administrative judge properly recognized that Appendix (App.) D -4
of Army Regulation (AR) 190-56, The Army Civilian Police and Security Guard
Program, provides that the alternative walk test is permitted for current
employees “with long-term medical restrictions or disabilities who cannot
perform the run . . event[], but can otherwise perform the essentials [sic]
functions of the job.” ID at 5; IAF, Tab 6 at 65, 67. The administrative judge
found that the appellant did not diligently seek an appointment with a physician2
from the Department of Veterans Affairs (VA) to obtain the medical information
that was necessary to be afforded the walk test.2 ID at 8-9.
On petition for review, the appellant challenges the administrative judge’s
finding that the agency did not wrongly deny him the opportunity to take the
alternative walk test. Petition for Review (PFR) File, Tab 1 at 5-8. Specifically,
the appellant argues that the administrative judge failed to recognize that, under
AR 190-56, ¶ 3-10, App. C-5, only a physician with Federal status has the
authority to determine whether it is appropriate for an employee to take the walk
or run test. PFR File, Tab 1 at 5-7. Thus, the appellant claims that the
administrative judge incorrectly shifted the burden from the agency to him to
obtain a certification from a physician with Federal status and incorrectly
required him to do something futile, as only the agency’s physicians within its
Occupational Health Department could have provided the necessary certification.
Id. The appellant further reasserts his argument that he already had provided the
agency with sufficient medical information under 5 C.F.R. part 339 and that the
agency was required under 5 C.F.R. § 339.304(a) to procure or pay for any
additional information it had wanted. PFR File, Tab 1 at 7-8; IAF, Tab 25
at 13-14.
After considering the appellant’s arguments and reviewing the relevant
regulations, we discern no basis to disturb the initial decision.3
Specifically, AR 190-56, App. C-5(b)(3), provides the following:
The [Provost Marshal], [Director of Emergency Services], or
designated command representative will determine whether an
individual with a disability or long-term medical restrictions can take
the PAT (including through the use of alternate events) and perform
the essential functions of the job. Often, this determination may be
2 It is apparent based on the appellant’s assertions that he obtained healthcare and
medical services through the VA in his personal capacity. IAF, Tab 25 at 8-10.
3 Only Appendix D of AR 190-56 was included in the agency file. IAF, Tab 6 at 65-67.
Nevertheless, we have been able to access the complete provisions of AR 190-56
through http://www.westlaw.com. See 5 C.F.R. § 1201.64 (providing that the Board
may take official notice of matters that can be verified).3
made based upon written information from an employee’s own health
care provider. It also may be appropriate to consult with Army
medical personnel to obtain any additional documentation necessary
for this determination.
See AR 190-56, Glossary § I (regarding abbreviations replaced in quoted text).
As discussed in the initial decision, the deciding official, who is the Chief of
Physical Security in the Directorate of Emergency Services, determined in
September 2018 that the appellant’s notes from his chiropractor dated July 31,
2017, and August 7, 2018, were not acceptable medical profiles for allowing him
to take the alternative walk test. ID at 6-7. We find that the deciding official was
authorized to make this determination pursuant to AR 190-56, App. C-5(b)(3).4
We further find that the deciding official did not abuse his discretion under the
circumstances because the appellant’s notes on their face did not suggest that he
had any long-term medical restrictions or disabilities and because the results of
his March 2018 annual physical that was conducted through Occupational Health
indicated he had “no limiting conditions.”5 ID at 7; IAF, Tab 24 at 78, Tab 25
at 21-22.
Contrary to the appellant’s assertions, we discern no requirement under
AR 190-56, App. C-5 for the deciding official to have referred the appellant’s
notes to Occupational Health. PFR File, Tab 1 at 5. Further, the appellant’s
reliance on AR 190-56, ¶ 3-10 for such a referral requirement is unavailing.
PFR File, Tab 1 at 5. In relevant part, AR 190-56, ¶ 3-10(a) provides that “when
the examining provider is not in federal service, the evaluation must be forwarded
to a physician having federal status for review and approval.” However, when
reading this provision in the context of AR 190-56, ¶ 3-10 as a whole, it is clear
4 AR 190-56, Glossary § II provides that the Provost Marshal or Director of Emergency
Services can be the Chief of Security.
5 Although the August 7, 2018 note referenced light duty, the appellant continued to
perform his normal duties as a Supervisory Security Guard and he testified that he had
no problems performing his normal job duties. ID at 6; IAF, Tab 25 at 22, Tab 32,
Hearing Recording (testimony of the appellant).4
that the referral requirement only applies to the results of the initial and periodic
medical evaluations that are conducted pursuant to the agency’s Individual
Reliability Program. The procedures for conducting those medical evaluations
are set forth in AR 190-56, App. C, and App. C-1(h) clarifies that such medical
evaluations are conducted through Occupational Health. Thus, we find that the
appellant’s own VA-contracted chiropractor did not conduct an “evaluation”
within the meaning of AR 190-56, ¶ 3-10(a). ID at 6 n.2. Based on the
foregoing, we do not agree with the appellant’s argument that the agency was
required under AR 190-56, ¶ 3-10, App. C-5 to refer his notes from his
chiropractor to the agency’s physicians within Occupational Health. PFR File,
Tab 1 at 5.
Moreover, we find that the deciding official was authorized to request
additional medical information from the appellant under AR 190-56, App. C-5(b)
(4), which, when read with App. C-5(b)(3), contemplates that the agency can
request additional medical information from individuals concerning their ability
to take the PAT. Even if the appellant did not know that Occupational Health
ultimately was responsible for approving his medical profile that was necessary
for the alternative walk test, ID at 8, we do not agree with his argument that it
was futile to obtain additional medical information, PFR File, Tab 1 at 5-6. In
particular, the deciding official admitted in his hearing testimony that if, prior to
failing the March 2019 run test, the appellant had provided the agency with the
more-detailed note from his chiropractor that he submitted in response to his
proposed removal, it may have led (after referral to Occupational Health) to him
being granted the walk test. ID at 11-12; IAF, Tab 25 at 23, Tab 32, Hearing
Recording (testimony of the deciding official).
In addition, we do not agree with the appellant’s argument that the agency
was required under 5 C.F.R. § 339.304(a) to obtain or pay for the additional
medical information it had requested. PFR File, Tab 1 at 7. Specifically,
5 C.F.R. § 339.304(a) provides, “An agency must pay for all medical and/or5
psychological and/or psychiatric examinations required or offered by the agency
under this subpart, . . . .” We find that this provision does not apply to this case
because the record reflects that the agency simply requested additional medical
information from the appellant and did not require or offer a medical
examination. ID at 7-8. Instead, 5 C.F.R. § 339.304(c) provides that, under such
circumstances when no medical examination is required or offered by the agency
but the agency requests an employee to provide medical documentation to render
an informed management decision, the employee must pay to obtain all relevant
medical documentation from his physician or practitioner. We further disagree
with the appellant’s argument that he already had provided the agency with
sufficient medical information for purposes of 5 C.F.R. part 339. PFR File, Tab 1
at 7. As discussed in the initial decision, the deciding official determined that the
appellant’s notes from his chiropractor were not acceptable to allow him to take
the walk test because they lacked a diagnosis, prognosis, and a statement as to the
duration of any restrictions. ID at 6-7. We find that this determination is
consistent with the definition of “medical documentation” under 5 C.F.R.
§ 339.104, which specifies that “[a]n acceptable diagnosis must include the
information identified by the agency as necessary and relevant to its employment
decision.”
We affirm the administrative judge’s finding that the appellant did not prove his
claim of disability discrimination.
The appellant further challenges on review the administrative judge’s
finding that he did not prove his claim that the agency committed disability
discrimination by failing to accommodate his alleged back condition through the
alternative walk test. PFR File, Tab 1 at 8-10; ID at 9-10. Even assuming, as the
appellant argues, that he is a qualified individual with a disability because of his
back condition and that the agency knew he was requesting to take the alternative
walk test as a reasonable accommodation, we still agree with the administrative
judge’s finding that he has not proven his disability discrimination claim.6
PFR File, Tab 1 at 8-9; ID at 9-10; see White v. Department of Veterans Affairs ,
120 M.S.P.R. 405, ¶ 9 (2013) (observing that, to establish disability
discrimination based on a failure to accommodate, an employee must show that
(1) he is an individual with a disability, as defined by 29 C.F.R. § 1630.2(g),
(2) he is a qualified individual with a disability pursuant to 29 C.F.R.
§ 1630.2(m), and (3) the agency failed to provide a reasonable accommodation).6
Specifically, we find that the appellant has not established that the agency
violated its duty of reasonable accommodation because the record reflects that he
failed to fulfill his obligations in the interactive accommodation process.
See, e.g., White, 120 M.S.P.R. 405, ¶¶ 11-12 (explaining that, when the existence
or nature of a reasonable accommodation is not obvious and the employee fails to
respond to the employer’s reasonable request for medical information or
documentation, an agency will not be found to have violated its duty to provide a
reasonable accommodation). Importantly, despite being told why his notes from
his chiropractor were not acceptable to allow him to take the walk test, the
appellant did not provide the agency with more-detailed information regarding his
back condition until after his proposed removal. ID at 7-9, 11-12;
see, e.g., White, 120 M.S.P.R. 405, ¶¶ 13-14 (declining to find that the agency
failed to satisfy an obligation to provide a reasonable accommodation when the
appellant did not reply to the agency’s response stating that it needed additional
information before it could act on his request for accommodation).
Accordingly, we affirm the initial decision.
6 As a Federal employee, the appellant’s disability discrimination claim arises under the
Rehabilitation Act. White, 120 M.S.P.R. 405, ¶ 9 n.4. The standards under the
Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of
2008, have been incorporated by reference into the Rehabilitation Act. 29 U.S.C.
§ 791(f); White, 120 M.S.P.R. 405, ¶ 9 n.4. Therefore, we apply those standards here to
determine if there has been a Rehabilitation Act violation. 7
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any9
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s10
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Robbins_ShawnDE-0752-19-0291-I-1_Final_Order.pdf | 2024-09-13 | SHAWN ROBBINS v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-19-0291-I-1, September 13, 2024 | DE-0752-19-0291-I-1 | NP |
519 | https://www.mspb.gov/decisions/nonprecedential/Frost_SummerSF-0752-22-0259-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SUMMER FROST,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0752-22-0259-I-1
DATE: September 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carson S. Bailey , Esquire, and Tyler J. Sroufe , Esquire, Dallas, Texas, for
the appellant.
Veronika Williams , Los Angeles, California, for the agency.
Mandeev Brar , Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member *
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her alleged involuntary resignation appeal for lack of jurisdiction. On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review, the appellant reasserts that she resigned as a result of her
working conditions, disagrees with the administrative judge’s determination that
she could have pursued remedies short of resigning, and argues for the first time
on review that her coworker’s comments about her use of leave under the Family
and Medical Leave Act of 1993 had a chilling effect on her decisions to work on
days that leave would have been more beneficial to her mental health. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Frost_SummerSF-0752-22-0259-I-1_Final_Order.pdf | 2024-09-13 | SUMMER FROST v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-22-0259-I-1, September 13, 2024 | SF-0752-22-0259-I-1 | NP |
520 | https://www.mspb.gov/decisions/nonprecedential/Chapman_John_W_CH-0752-22-0269-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN WAYNE CHAPMAN,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-22-0269-I-1
DATE: September 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marisa L. Williams , Esquire, Englewood, Colorado, for the appellant.
Alexander R. Rivera , Esquire, Denver, Colorado, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal. For the reasons set forth below, the appellant’s
petition for review is DISMISSED as untimely filed without good cause shown. 5
C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant filed the instant appeal challenging his removal. Initial
Appeal File (IAF), Tab 1. On May 22, 2023, the administrative judge issued an
initial decision affirming the appellant’s removal. IAF, Tab 67, Initial Decision
(ID). She found that the agency proved its charges and that the appellant failed to
prove his affirmative defenses of sex discrimination, due process violation,
harmful procedural error, laches, and retaliation for his prior Board appeal.
ID at 6-32. She also concluded that the penalty of removal was reasonable and
promoted the efficiency of the service. ID at 33-37. The initial decision
informed the appellant how to file a petition for review and explained that the
deadline for filing a petition for review was June 26, 2023. ID at 37.
¶3The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. However, he did not file until June 29, 2023, three days after the
deadline for doing so. Id. The agency has filed a response requesting that the
petition for review be dismissed as untimely filed without good cause shown.
PFR File, Tab 3 at 4-8.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision, or if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The Board will
waive the time limit for filing a petition for review only upon a showing of good
cause for the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§ 1201.114(g).
¶5The party who submits an untimely petition for review has the burden of
establishing good cause for the untimely filing by showing that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.2
Palermo, 120 M.S.P.R. 694, ¶ 4. To determine whether a party has shown good
cause, the Board will consider the length of the delay, the reasonableness of his
excuse and the party’s showing of due diligence, whether he is proceeding pro se,
and whether he has presented evidence of the existence of circumstances beyond
his control that affected his ability to comply with the time limits or of
unavoidable casualty or misfortune which similarly shows a causal relationship to
his inability to timely file his petition. Id.; see Moorman v. Department of the
Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶6Here, the administrative judge issued the initial decision on May 22, 2023,
and served it on the appellant that same day.2 ID at 1; IAF, Tab 68. Thus, the
appellant was required to file his petition for review no later than June 26, 2023.
ID at 37. As noted above, the appellant’s petition for review of the initial
decision was filed on June 29, 2023, three days after the deadline set forth in the
initial decision.3 PFR File, Tab 1. Because the filing appeared untimely, the
Board’s e-Appeal system automatically generated questions concerning
timeliness, to which the appellant responded, “I am not late on this response. I
live in Missouri and i initially tried to submit my respone [sic] at 11:11pm on the
26th of June. It is currently 11:23 pm in Missouri and i need to submit this.”
Id. at 5.
2 On review, the appellant asserts that he received the initial decision on May 27, 2023.
PFR File, Tab 1 at 4. However, Board documents served electronically on e-filers are
deemed received on the date of electronic submission. 5 C.F.R. § 1201.14( l)(2) (2023).
When a statute or regulation “deems” something to be done or to have been done, the
event is considered to have occurred whether or not it actually did. Lima v. Department
of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006). Further, even if the appellant received
the initial decision on May 27, 2023, as he claimed, he would still be required to file his
petition for review by June 26, 2023. See 5 C.F.R. § 1201.114(e).
3 Pursuant to the Board’s regulations, all pleadings filed via e-Appeal are time stamped
with Eastern Time, but the timeliness of a pleading is determined based on the time
zone from which the pleading was submitted. See 5 C.F.R. § 1201.14(m) (2023). The
petition for review in this matter was stamped “2023-06-30 00:43:29” by e-Appeal. As
the appellant’s address of record at the time of filing was located in the Central Time
Zone, the pleading was filed on June 29, 2023, at 11:43 p.m. Central Time. PFR File,
Tab 1.3
¶7The Clerk of the Board issued an acknowledgment letter, instructing the
appellant that an untimely filed petition for review must be accompanied by a
motion to either accept the filing as timely and/or waive the time limit for good
cause. PFR File, Tab 2 at 1 (citing 5 C.F.R. § 1201.114(g)). The letter further
instructed the appellant that if he wished to file the aforementioned motion, he
must include a statement signed under penalty of perjury or an affidavit showing
that the petition was either timely filed or good cause existed for the
untimeliness. Id. at 1-2. It also included a form for the motion, sworn statement,
and affidavit and provided a deadline of July 15, 2023. Id. at 2, 7-8. Despite the
instructions contained in the acknowledgment letter, the appellant did not submit
a sworn statement, affidavit, or further explanation for the untimely filing.
¶8We considered whether the appellant’s claim that he timely filed his petition
for review was accurate, PFR File, Tab 1 at 4, and the apparent delay resulted
from issues with the Board’s e-Appeal system. Under limited circumstances, the
Board will excuse delays in filing caused by difficulties encountered with the e-
Appeal system. E.g., Salazar v. Department of the Army , 115 M.S.P.R. 296, ¶¶ 6-
8 (2010) (excusing a filing delay when the appellant alleged that he attempted to
electronically file his petition for review on time and the e-Appeal system showed
that he had, in fact, accessed the system prior to the date that his petition was due,
and after he became aware that his petition had not been filed, the appellant
promptly contacted the Board and submitted a petition for review that included an
explanation of his untimeliness); Lamb v. Office of Personnel Management , 110
M.S.P.R. 415, ¶ 9 (2009) (finding good cause for the untimely filing of a petition
for review when the appellant reasonably believed he timely filed his appeal by
completing all questions on the appeal form and exited the website without
receiving a clear warning that his appeal was not filed). However, we find that
the appellant’s failure to timely file his submission is not excusable here.
¶9The appellant has not shown any circumstances beyond his control, such as
unavoidable casualty or misfortune, which affected his ability to comply with the4
time limits. To the extent the appellant contends that he was unable to comply
with the June 26, 2023 deadline, the Board notes that he did not submit a request
for an extension of time to file his petition for review nor did he file the
timeliness motion, as mentioned above, to explain his untimeliness. Further, to
the extent the appellant alleges that he experienced difficulty submitting his
petition via e-Appeal, there is no evidence in the record that he attempted to
pursue alternate means to timely file his petition. See 5 C.F.R. § 1201.14(f)
(2023) (“A party or representative who has registered as an e-filer may file a
pleading by non-electronic means, i.e., via postal mail, fax, or personal or
commercial delivery.”). Although he is proceeding pro se on review and his
3-day filing delay is minimal, under the circumstances of this case, we find that
the appellant has failed to establish good cause for his delay in filing his petition
for review. See Palermo, 120 M.S.P.R. 694, ¶¶ 5-8 (declining to excuse a 7-day
delay); Schuringa v. Department of the Treasury , 106 M.S.P.R. 1, ¶¶ 4 n.*, 9, 14
(2007) (finding a 4-day delay minimal). Smith v. Department of the Army ,
105 M.S.P.R. 433, ¶ 6 (2007) (declining to excuse the appellant’s 1 -day delay in
filing his petition for review when the appellant failed to explain the delay).
¶10Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s removal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at6
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,7
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal 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. 115-195,8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Chapman_John_W_CH-0752-22-0269-I-1_Final_Order.pdf | 2024-09-11 | JOHN WAYNE CHAPMAN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-22-0269-I-1, September 11, 2024 | CH-0752-22-0269-I-1 | NP |
521 | https://www.mspb.gov/decisions/nonprecedential/Friend_JeffreySF-844E-20-0204-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEFFREY FRIEND,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-20-0204-I-1
DATE: September 11, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jeffrey Friend , San Jose, California, pro se.
Heather Dowie and Shaquita Stockes , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying, as untimely filed, his request for reconsideration of OPM’s
initial decision disallowing his application for disability retirement, also on
timeliness grounds. For the reasons set forth below, we GRANT the petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, VACATE the initial decision, and REMAND the case to the Western
Regional Office for further adjudication in accordance with this Order.
BACKGROUND
¶2The U.S. Postal Service removed the appellant from his Mail Handler
position effective July 29, 2013, for an unspecified, non-compensable disability.
Initial Appeal File (IAF), Tab 7 at 36, 73-74. Beginning in June 2015, the
appellant began primary care, psychiatric treatment, and social work case
management at the Santa Clara Valley Health & Hospital System’s Valley
Homeless Clinic. Id. at 40-46. According to a statement by his social worker at
the clinic, she assisted the appellant with filing a disability retirement application
in September 2015, but OPM did not respond until after the appellant contacted a
member of Congress, at which point OPM stated that it had not received the
application. Id. at 46. The appellant, with the assistance of his social worker,
submitted the application again in August 2016 and, after a year and another
inquiry from a member of Congress, OPM located and processed the application.
Id.
¶3In a December 28, 2017 initial decision, OPM dismissed the appellant’s
August 2016 application for disability retirement on the basis that it was not filed
within 1 year of the appellant’s separation as required by law.2 Id. at 30-31.
OPM informed the appellant that any request for reconsideration had to be
received by OPM within 30 calendar days. Id. at 31. The appellant signed a
request for OPM to reconsider its initial decision on August 1, 2018, but the
envelope in which OPM received the appellant’s request was postmarked
October 19, 2018. Id. at 28-29. Between April and June 2019, OPM sent the
appellant three letters informing him of the criteria for waiver of the timeliness
2 The copy of the disability retirement application that OPM included with its file
submitted to the administrative judge below was signed by the appellant on July 28,
2015. IAF, Tab 7 at 43. The appellant’s social worker explained that the appellant had
resubmitted the 2015 application in August 2016. Id. at 46, 50. 2
requirement and offering him an opportunity to send evidence to show that he was
qualified for such a waiver; however, all three letters were returned to OPM as
undeliverable. Id. at 14-27. On November 14, 2019, OPM denied the appellant’s
reconsideration request as untimely filed. Id. at 6-7. That decision informed the
appellant that he could file an appeal with the Board within 30 calendar days.
Id. at 7. On January 12, 2020, the appellant filed the instant appeal, generally
describing his mental health issues and difficulties with the disability retirement
application process. IAF, Tab 1 at 4.
¶4The administrative judge also issued a timeliness order instructing the
appellant to file evidence and argument that he either timely filed his Board
appeal or that there was good cause for the delay in filing. IAF, Tab 3 at 3-4.
The agency subsequently moved to dismiss the appeal as untimely filed. IAF,
Tab 7 at 4. After holding a telephonic hearing at which the appellant was the
only witness, the administrative judge affirmed OPM’s reconsideration decision.
IAF, Tab 56; IAF, Tab 58, Initial Decision (ID) at 1.3 The administrative judge
considered the appellant’s medical condition but found that he did not
demonstrate that circumstances beyond his control had prevented him from timely
filing his reconsideration request. ID at 5-6. The administrative judge reasoned
that nothing in the record showed that the appellant’s medical condition or ability
to function changed between the 30-day period that began December 28, 2017,
the date of OPM’s initial decision, and October 19, 2018, the date the appellant
3 In light of his finding that the appellant’s reconsideration request to OPM was
untimely filed, the administrative judge found that he did not need to decide whether
the appellant’s Board appeal was timely filed. ID at 2 n.3. We find that the appellant
was required to file his appeal by January 9, 2020, i.e., 30 days following his receipt of
OPM’s final decision on December 10, 2019, and thus his January 12, 2020 Board
appeal was untimely by 3 days. IAF, Tab 1, Tab 10 at 4-5, 9, Tab 56-2 (testimony of
the appellant); see 5 C.F.R. §§ 1201.22(b)(1)-(3). However, based on our review of the
medical evidence set forth later in this decision, we find that good cause exists for the
appellant’s brief filing delay and therefore waive the time limit. Smith v. Office of
Personnel Management , 117 M.S.P.R. 527, ¶¶ 6-11 (2012) (finding good cause for a
13-month delay in filing when the appellant’s mental conditions affected or impaired
her ability to file with the Board); 5 C.F.R. § 1201.22(c). 3
submitted his reconsideration request. Id. Ultimately, because the administrative
judge found that the appellant failed to show that he was not notified of the time
limit for requesting reconsideration or prevented by circumstances beyond his
control from making such a request, the administrative judge found that the
appellant did not meet the stringent regulatory criteria for relief from an untimely
request for reconsideration under 5 C.F.R. § 841.306(d)(2). ID at 6.
¶5In his timely filed petition for review, the appellant challenges the
administrative judge’s finding that he failed to demonstrate that circumstances
beyond his control prevented him from timely requesting reconsideration.
Petition for Review (PFR) File, Tab 1 at 3. He asserts that he experienced a
period of continuous deterioration before, during, and after the time for the
submission of his reconsideration request to OPM, which constituted
circumstances beyond his control. Id. He submits a new, detailed statement
concerning his medical condition, signed by a psychiatrist and the social worker
who assisted him with his disability retirement application, and which directly
addresses several of the administrative judge’s findings about the appellant’s
competency. Id. at 4, 9-12. OPM did not respond to the appellant’s petition for
review.
ANALYSIS
The appellant’s reconsideration request was untimely filed, and nothing shows
that he was not notified or was otherwise unaware of the time limit for requesting
reconsideration.
¶6When OPM dismisses an individual’s request for reconsideration of an
initial decision as untimely, the Board has jurisdiction over an appeal regarding
the timeliness determination. Kent v. Office of Personnel Management ,
123 M.S.P.R. 103, ¶ 7 (2015). The Board will reverse a decision by OPM
dismissing a reconsideration request on timeliness grounds only if it finds that the
dismissal was unreasonable or an abuse of discretion. Id. 4
¶7Under the Federal Employees’ Retirement System (FERS), a request for
reconsideration of an initial decision issued by OPM regarding retirement benefits
must be received by OPM within 30 calendar days from the date of the initial
decision. 5 C.F.R. § 841.306(d)(1); see Kent, 123 M.S.P.R. 103, ¶ 7. The
regulations also provide that OPM may extend the time limit when the individual
shows either that: (1) he was not notified of the time limit and was not otherwise
aware of it; or (2) he was prevented by circumstances beyond his control from
making the request within the time limit. 5 C.F.R. § 841.306(d)(2). If an
appellant shows before the Board that he qualified for an extension of the time
limit under OPM’s regulations, the Board then will consider whether OPM acted
unreasonably or abused its discretion in refusing to extend the time limit and
dismissing his request for reconsideration as untimely filed. Kent, 123 M.S.P.R.
103, ¶ 8. If, however, the appellant does not first show that he qualified for an
extension under OPM’s regulatory criteria, the Board will not reach the issue of
whether OPM was unreasonable or abused its discretion. Id. The good cause
standard the Board would apply to cases untimely filed with the Board is a more
lenient standard than the narrower factual criteria under 5 C.F.R. § 841.306(d)(2).
Id.
¶8The appellant signed his request for reconsideration of OPM’s
December 28, 2017 initial decision on August 1, 2018, and the envelope in which
he sent it to OPM was postmarked on October 19, 2018. IAF, Tab 7 at 28-29.
Because such a request for reconsideration must be received by OPM within 30
days of the date of the initial decision, we agree with the administrative judge
that the appellant’s request for reconsideration was untimely filed. ID at 3-4;
5 C.F.R. § 841.306(d)(1). The administrative judge also found that the appellant
did not establish that he was not notified or was otherwise unaware of the time
limit for filing. ID at 3-4, 6. Nothing causes us to question that finding. The
dispositive question in this appeal is thus whether the appellant has presented5
sufficient evidence to show that he was prevented by circumstances beyond his
control from filing a timely reconsideration request. 5 C.F.R. § 841.306(d)(2).
Remand is necessary to invoke French procedures.
¶9In Barnett v. Office of Personnel Management , 88 M.S.P.R. 95, ¶ 8 (2001),
as in this appeal, the appellant failed to show that he was not notified or was
otherwise unaware of the time limit for requesting reconsideration. Also as in
this appeal, the Board in Barnett recognized the centrality of whether the
appellant was prevented by circumstances beyond his control from making a
timely reconsideration request. Id. Because the record in Barnett contained
information sufficient to call into doubt the mental competency of the appellant to
prosecute his appeal pro se, the Board remanded the appeal to determine whether
the procedures set forth in French v. Office of Personnel Management , 810 F.2d
1118, reh’g denied, 823 F.2d 489 (Fed. Cir. 1987), should be invoked. Barnett,
88 M.S.P.R. 95, ¶ 15. In French, our reviewing court required that the Board
establish procedures to obtain representation for incompetent appellants in cases
involving entitlement to retirement benefits. French, 810 F.2d at 1120. As the
following discussion explains, because the record here similarly calls into
question the appellant’s mental competency to prosecute his appeal pro se, we
must remand this appeal to the regional office for further adjudication and
invocation of the procedures set forth in French. Barnett, 88 M.S.P.R. 95, ¶ 15.
¶10The U.S. Court of Appeals for the Federal Circuit held in French that, if
there is “an apparently nonfrivolous claim of past incompetence by one presently
incompetent,” the Board and OPM must take an “active role” in ensuring that the
apparently incompetent appellant not be “charged with the task of establishing his
case [alone].” French, 810 F.2d at 1120. The test for whether an individual is
mentally incompetent is whether he was unable to handle his personal affairs
because of either physical or mental disease or injury. Rapp v. Office of
Personnel Management , 483 F.3d 1339, 1341 (Fed. Cir. 2007). An individual can6
meet this standard even if he has “some minimal capacity to manage his own
affairs.” Id. (quoting French, 810 F.2d at 1120). In determining whether an
individual was mentally incompetent during the relevant time period, the Board
requires medical evidence supporting subjective opinions of mental
incompetence. Arizpe v. Office of Personnel Management , 88 M.S.P.R. 463, ¶ 9
(2001). A medical provider’s conclusion that an individual is mentally
incompetent is persuasive only if the medical provider explains how a mental
illness renders the individual incompetent. Gonzales v. Office of Personnel
Management, 91 M.S.P.R. 46, ¶ 5, aff’d, 48 F. App’x 747 (Fed. Cir. 2002).
¶11With his petition for review, the appellant provides a joint letter from the
social worker mentioned above and a psychiatrist associated with the Valley
Homeless Clinic. PFR File, Tab 1 at 9-12.4 In that letter, the two mental health
professionals assert that the appellant has been treated at their facility since June
2015 and has been diagnosed with paranoid schizophrenia and post-traumatic
stress disorder (PTSD), and that he has traits of avoidant personality disorder. Id.
at 9. The letter explains that the symptoms of paranoid schizophrenia most
evident in the appellant include paranoid delusions, loss of executive function,
and preoccupation/obsessive fixation with his perceived treatment by the Postal
Service and his legal issues, and the symptoms of PTSD most evident include
depression and anxiety, and hypervigilance. Id. The letter also specifically
addresses some of the administrative judge’s findings, first opining that the
mental disability that the administrative judge acknowledged in the initial
decision generally affected the appellant from his initial OPM submission through
all the steps of the reconsideration process. Id. The letter further states that,
even when he was on anti-depressant medication, the appellant’s paranoia and
anxiety remained symptomatic. Id. The social worker and the psychiatrist
explained that the appellant’s obsessive thoughts distracted him from focusing on
4 Although the appellant has not shown that the information contained in this letter from
his mental health providers was unavailable when the record closed, we exercise our
discretion to consider this newly submitted evidence. See 5 C.F.R. §§ 1201.115(d), (e).7
the task of completing his documents and that, as a result, he was unable to do so
despite expending significant effort. Id. They wrote that their clinical evaluation
of the appellant showed his mental status decompensated after May 2017, and that
“his poor concentration, poor executive function, paranoia and intrusive
perseverative thoughts were disabling and certainly affected his ability to
complete the reconsideration process.” Id. at 10. Although the letter, like the
initial decision, focuses on the period pertinent to the reconsideration process and
therefore does not specifically address the appellant’s current state, the tone of
the letter indicates that the appellant’s mental illness is likely ongoing. Id. at9-
10. Furthermore, there is some indication in the appellant’s pleadings below that
he was unable to adequately represent himself due to ongoing symptoms of his
mental disorders. See, e.g., IAF, Tabs 12-13. Thus, we find that the evidence
indicates that the appellant is presently incompetent.
¶12As noted above, to require the invocation of French procedures, an
appellant must also present nonfrivolous evidence of past incompetence. French,
810 F.2d at 1120. In this regard, the record contains a March 1, 2016 Mental
Impairment Questionnaire in which the social worker diagnosed the appellant
with the same mental illnesses as those indicated in the letter submitted with the
appellant’s petition for review. IAF, Tab 7 at 51; PFR File, Tab 1 at 9. In
addition, the social worker indicated in that assessment that the appellant was
seriously limited in his ability to “[c]arry out very short and simple instructions”
and was unable to “[a]sk simple questions or request assistance.” IAF, Tab 7
at 53. In addition, the social worker explained in an August 2, 2016 letter to
OPM that the appellant “has a permanent and severe mental health condition.”
Id. at 50. In a June 21, 2018 statement to OPM, the social worker asserted that
the reason the appellant failed to timely file his disability retirement application
within 1 year of his separation from the U.S. Postal Service was because of “a
permanent and severe mental health condition.” Id. at 46. On October 5, 2018,
the Medical Director of the Valley Homeless Clinic explained that the appellant8
was unable to file for disability retirement in 2015 because he was “very impaired
by his symptoms” and “had trouble taking care of his most basic needs, much less
complicated paperwork.” Id. at 45. The social worker provided a statement in
lieu of testifying in this appeal in which she explained that the appellant’s
diagnoses of PTSD, major depression, and schizophrenia cause cognitive
problems including poor memory, poor concentration, and poor executive
function. IAF, Tab 51 at 4. Finally, as for the appellant’s subjective opinion,
among other things, he wrote in the statement of disability that accompanied his
retirement application that, starting in 2010, he suffered from extreme depression,
PTSD, anxiety, and paranoia, and had poor memory, concentration, and follow-
through. IAF, Tab 7 at 62. Thus, we find nonfrivolous allegations of past
incompetence in relation to the filing deadlines.
¶13A final condition for the imposition of French procedures is that the
appellant must be proceeding “entirely pro se.” Engler v. Office of Personnel
Management, 81 M.S.P.R. 582, ¶ 5 (1999); see French, 810 F.2d at 1120. French
procedures need not be invoked merely because the appellant’s representative is
not an attorney or guardian, but neither does the inquiry under French end simply
because the appellant has a lay representative. Engler, 81 M.S.P.R. 582,
¶¶ 20-21. The Board must examine whether the representative is capable of
adequately representing the appellant before the Board. Id., ¶ 21.
¶14Here, as discussed above, the appellant was receiving mental health services
from a social worker at the Valley Homeless Clinic and, in addition to providing
relevant evidence regarding the appellant’s mental illness, she also assisted him
in completing paperwork regarding his disability retirement application and
litigation with OPM. At no time, however, did the appellant designate the social
worker as his legal representative. According to the appellant, she expressed to
him that she was unavailable to appear at his hearing as a witness due to the
demands of her work. IAF, Tab 45 at 3, Tab 47 at 3. Accordingly, we find that
the appellant was proceeding without representation before the Board.9
¶15In sum, as discussed above, the evidence shows that the appellant is
presently incompetent to prosecute his appeal pro se. Moreover, the record
contains nonfrivolous evidence that the appellant suffered from past
incompetence during the relevant filing deadlines. Finally, the appellant is
proceeding pro se before the Board. Thus, we find that, consistent with Federal
Circuit and Board precedent, French procedures must be invoked.
ORDER
¶16For the reasons discussed above, we vacate the initial decision and remand
this case to the regional office. On remand, the administrative judge shall make
diligent efforts to obtain appropriate representation for the appellant. See
Barnett, 88 M.S.P.R. 95, ¶ 16. If the administrative judge obtains capable
representation for the appellant, he should adjudicate the appeal on the merits,
including a hearing if the appellant requests one. If capable representation cannot
be obtained despite the administrative judge’s diligent efforts or if the appellant
refuses to allow himself to be represented by a capable representative, the
administrative judge shall not enter an adverse order against him; rather, if
necessary, he should dismiss the case without prejudice to reinstatement of the
action under circumstances conducive to fair adjudication. Id.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Friend_JeffreySF-844E-20-0204-I-1_Remand_Order.pdf | 2024-09-11 | JEFFREY FRIEND v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-20-0204-I-1, September 11, 2024 | SF-844E-20-0204-I-1 | NP |
522 | https://www.mspb.gov/decisions/nonprecedential/Blackmon__Barbara__J_CH-0845-20-0028-I-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BARBARA J. BLACKMON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0845-20-0028-I-3
DATE: September 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Barbara J. Blackmon , Chicago, Illinois, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed this appeal as moot. For the reasons discussed below, we GRANT the
appellant’s petition for review and AFFIRM the initial decision AS MODIFIED
to DISMISS the appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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).
If the Office of Personnel Management (OPM) completely rescinds a
reconsideration decision, its rescission divests the Board of jurisdiction over the
appeal in which that decision is at issue, and the appeal must be dismissed.
Moore v. Office of Personnel Management , 114 M.S.P.R. 549, ¶ 4 (2010); Rorick
v. Office of Personnel Management , 109 M.S.P.R. 597, ¶ 5 (2008). During the
proceedings below, OPM submitted a copy of a new initial decision, dated June 3,
2021, indicating that it had conducted a new audit and determined that the
appellant did not receive an overpayment, but instead received an underpayment
of $834.34, which it planned to reimburse in her next annuity payment. Initial
Appeal File, Tab 16 at 4-5. OPM indicated that all previous requests to collect an
overpayment were rescinded. Id. at 5. Based on OPM’s submission, the
administrative judge dismissed the appeal as moot.
We grant the appellant’s petition for review for the sole purpose of
addressing her argument that the administrative judge erred in dismissing her
appeal as moot. Although the rescission of an OPM reconsideration decision can
cause an appeal of that decision to become moot, for an appeal to be deemed
moot, the appellant must have received all of the relief that she could have
received if the matter had been adjudicated and she had prevailed. Moore,
114 M.S.P.R. 549, ¶ 5; Rorick, 109 M.S.P.R. 597, ¶ 6. Here, the appellant
contends that her appeal is not moot because OPM has already taken deductions
to collect the (nonexistent) overpayment and she has been underpaid more than
$834.34 as a result. The existing record is insufficient to determine whether
appellant has in fact received all of the relief she could have received if the
matter had been adjudicated and she had prevailed. Under these circumstances,
the administrative judge erred in dismissing the appeal as moot. See id.
However, the appellant has not challenged the accuracy of OPM’s
statement that it rescinded its prior determinations regarding the alleged
overpayment. Thus, although OPM’s rescission of its reconsideration decision2
did not render the appeal moot, it divested the Board of jurisdiction over this
appeal. See Moore, 114 M.S.P.R. 549, ¶ 6; Rorick, 109 M.S.P.R. 597, ¶¶ 5-6.
Accordingly, we dismiss this appeal for lack of jurisdiction. If OPM issues
a new reconsideration decision, and the appellant is dissatisfied with the result,
she may appeal that decision to the Board. See 5 U.S.C. § 8461(e)(1); 5 C.F.R.
§ 841.308. Any future appeal must be filed within the time limits set forth in the
Board’s regulations. See 5 C.F.R. § 1201.22.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
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: 5
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Blackmon__Barbara__J_CH-0845-20-0028-I-3_Final_Order.pdf | 2024-09-11 | BARBARA J. BLACKMON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-20-0028-I-3, September 11, 2024 | CH-0845-20-0028-I-3 | NP |
523 | https://www.mspb.gov/decisions/nonprecedential/Srinivasa_EktaPH-1221-21-0254-W-1_Final_Order (1).pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DR. EKTA SRINIVASA,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-21-0254-W-1
DATE: September 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Ekta Srinivasa , Brookline, Massachusetts, pro se.
Jonathan Smith , Bedford, Massachusetts, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her individual right of action (IRA) appeal as untimely filed.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
By letter dated March 22, 2021, the Office of Special Counsel (OSC)
informed the appellant that it had closed its file regarding her allegations of
reprisal for whistleblowing activity and notified her of her right to seek corrective
action from the Board within 65 days of the date of the letter. Initial Appeal File
(IAF), Tab 1 at 9-10; see 5 U.S.C. § 1214(a)(3)(A); 5 C.F.R. § 1209.5(a)(1)
(stating that an IRA appeal must be filed no later than 65 days after the date that
OSC issues its close-out letter, or, if the letter is received more than 5 days after
its issuance, within 60 days of the date of receipt). The appellant filed the present
IRA appeal on June 8, 2021, 79 days after the date of the close-out letter. IAF,
Tab 1 at 1-6.
On review, the appellant does not challenge the administrative judge’s
finding that her IRA appeal was filed after the deadline. Petition for Review
(PFR) File, Tab 1 at 4-7; IAF, Tab 10, Initial Decision (ID) at 3. Rather, she
requests that the Board consider her appeal based on new and material evidence
and waive the time limit for good cause shown. PFR File, Tab 1 at 4-5. The
appellant argues for the first time that she became aware in April 2021 that “new2
and relevant information to [her] claim was in process through an investigation
initiated based on [her] harassment complaints.” Id. at 5. The appellant
maintains that the internal harassment investigation was completed in April 2021
but that she did not receive the summary until July 8, 2021. Id. at 5-6, 8. She
submits a copy of the memorandum regarding the harassment investigation, which
is dated June 16, 2021. Id. at 8. The appellant also argues that pursuing Equal
Employment Opportunity and harassment complaints at the same time as filing
her complaint with OSC, without legal representation, contributed to her inability
to follow the procedural requirements and deadlines for each complaint. Id. at 6.
The appellant acknowledges that she “did mix up the deadline to file” her IRA
appeal, but maintains that it was not deliberate and that her plan to file on time
was impacted by having to wait for the harassment investigation report. Id.
Finally, she argues that the length of her filing delay was “only 13 days” and that
the delay should be “excused” because she was not negligent nor neglectful in
missing the deadline. Id. at 7.
Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the close of the record below despite the party’s due diligence.
See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980); Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board
generally will not consider a new argument raised for the first time on review
absent a showing that it is based on new and material evidence). The appellant
does not explain why she did not make these arguments below. PFR File, Tab 1
at 4-7; IAF, Tab 9 at 4. In any event, the appellant’s arguments and the
harassment investigation summary do not provide a basis for disturbing the
administrative judge’s findings that she failed to establish that her appeal was
timely filed or that her delay should be excused on the basis of equitable tolling.
ID at 3. 3
All of the appellant’s arguments on review relate to her contention that she
has established good cause for her filing delay. PFR File, Tab 1 at 4-7. As set
forth in the initial decision, the statutory limit for filing an IRA appeal cannot be
waived for good cause shown. ID at 2; see Heimberger v. Department of
Commerce, 121 M.S.P.R. 10, ¶ 9 (2014). Even considering the appellant’s new
arguments on review, we find that she has not alleged any circumstances that
would warrant the application of equitable tolling to excuse her untimely filing.
See Wood v. Department of the Air Force , 54 M.S.P.R. 587, 593 (1992)
(explaining that the filing period may be suspended for equitable reasons, such as
when the complainant has been induced or tricked by her adversary’s misconduct
into allowing the deadline to pass or where she filed a defective pleading during
the statutory period) (citing Irwin v. Department of Veterans Affairs , 498 U.S. 89,
96 (1990)); 5 C.F.R. § 1209.5(b). Equitable tolling does not extend to mere
“excusable neglect.” Wood, 54 M.S.P.R. at 593 (quoting Irwin, 498 U.S. at 96).
The appellant has not demonstrated that extraordinary circumstances prevented
her from timely filing her initial appeal. PFR File, Tab 1 at 9, 12; see
Heimberger, 121 M.S.P.R. 10, ¶ 10.
Accordingly, we deny the petition for review and affirm the initial
decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The5
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Srinivasa_EktaPH-1221-21-0254-W-1_Final_Order (1).pdf | 2024-09-11 | DR. EKTA SRINIVASA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-21-0254-W-1, September 11, 2024 | PH-1221-21-0254-W-1 | NP |
524 | https://www.mspb.gov/decisions/nonprecedential/Franken_Kevin_M_SF-0752-18-0047-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KEVIN M. FRANKEN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-18-0047-I-1
DATE: September 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jillian T. Weiss , Esquire, Brooklyn, New York, for the appellant.
William Brendan Davis , Sacramento, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
supplement the administrative judge’s analysis concerning the appellant’s
affirmative defenses of whistleblower reprisal and reprisal for protected equal
employment opportunity (EEO) activity, we AFFIRM the initial decision.
BACKGROUND
The appellant was formerly employed as a Natural Resources Specialist
(Park Ranger) until the agency removed him, effective April 21, 2017, based on a
charge of conduct unbecoming (making misleading statements, discourtesy, and
creating a disturbance). Initial Appeal File (IAF), Tab 1 at 7. The charge was
supported by three specifications in which the agency alleged that, on three
different occasions, the appellant made misleading reports about his supervisor
and coworkers, including reports that his supervisor and a coworker had
mistreated and harassed him. IAF, Tab 10 at 5-6, 79-86.
The appellant filed a timely mixed-case appeal challenging his removal and
alleging that the agency’s removal action constituted reprisal for his EEO activity
and discrimination on a variety of different bases. IAF, Tab 1. He also raised
affirmative defenses of whistleblower reprisal, harmful procedural error, and
denial of due process. IAF, Tab 1 at 5, Tab 24 at 5-6. Following a hearing, the
administrative judge issued an initial decision sustaining the appellant’s removal
and finding that the appellant failed to prove his affirmative defenses. IAF,2
Tab 59, Initial Decision (ID) at 1-51. The administrative judge further found that
there was a nexus between the sustained charge and the efficiency of the service,
and that the penalty was within the tolerable limits of reasonableness. ID
at 51-54.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has opposed the appellant’s petition, and the appellant
has filed a reply. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge of conduct unbecoming.
On review, the appellant argues that the agency’s conduct unbecoming
charge should have been construed as a charge of falsification, which requires
proof that the appellant intentionally made a false complaint for an improper
purpose of personal gain. PFR File, Tab 1 at 7, 15-18. It does not appear that the
appellant raised such an argument below or objected to the administrative judge’s
order and summary of prehearing conference, which characterized the agency’s
charge as one of conduct unbecoming and indicated that the parties agreed to the
charge as characterized. IAF, Tab 24 at 29-35. Thus, the Board need not
consider such an argument for the first time on review. See Banks v. Department
of the Air Force , 4 M.S.P.R. 268, 271 (1980) (stating that the Board will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence).
Regardless, we discern no error in the administrative judge’s analysis of
the agency’s charge as one of conduct unbecoming. See, e.g., Cross v.
Department of the Army , 89 M.S.P.R. 62, ¶ 9 (2001) ( finding that the agency was
entitled to use a general charge such as conduct unbecoming a Federal employee,
which contains no specific intent element, rather than a charge of falsification,
which contains a specific intent element, even though the agency used the words3
“falsified” and “falsely” in its narrative supporting the charge). We similarly find
unpersuasive the appellant’s argument that the agency could have brought a
number of other charges based on the specifications, such as discourtesy. PFR
File, Tab 1 at 24. Even if true, the Board is required to review the agency’s
decision solely on the grounds invoked by the agency, and the Board may not
substitute what it considers to be a more adequate or proper basis. Gottlieb v.
Veterans Administration , 39 M.S.P.R. 606, 609 (1989).
In specification 1, the agency charged the appellant with not being
forthright when he reported in an email dated January 20, 2017, that, on
January 19, 2017, a Park Ranger coworker who had taken the appellant out on a
boating exercise to help him obtain his certification was “abrasive, adversarial,
antagonistic, harassing and hostile towards him.” IAF, Tab 10 at 79. According
to the agency, after receiving the appellant’s email, it investigated his claims and
found them unsubstantiated. Both the Park Ranger coworker and a Student Park
Ranger who witnessed their interactions contradicted the appellant’s version of
events. Id.
The administrative judge similarly credited testimony of the Student Park
Ranger and the Park Ranger coworker. ID at 11. According to them, the
appellant drove ahead of them with the boat and his driving “wasn’t safe.” He
drove the trailer off the road twice, failed to yield at a narrow section of the road,
and hit and injured a deer in a known deer area. ID at 7. After the appellant hit
the deer, the Park Ranger coworker commented to him that “we’re here to protect
wildlife, not run it over,” but such a statement was not made in a hostile or
aggressive tone. ID at 8. The administrative judge credited their testimony as
specific, detailed, consistent, and not improbable. ID at 11. In contrast, the
administrative judge declined to credit the appellant’s testimony that the Park
Ranger coworker was upset with him and shouted at him after he hit the deer
because of his sexual orientation and his prior EEO activities. Id. The
administrative judge found the appellant’s testimony to be vague, conclusory, and4
unconvincing to the extent that he offered few factual details about the day other
than to repeatedly assert that his coworker’s actions were unlawful. Id. The
administrative judge further found misleading the appellant’s statements in his
email that the Park Ranger coworker overreacted because he did not run over the
baby deer, but rather the deer walked into his truck. Id.
In specification 2, the agency alleged that, in an email dated February 2,
2017, the appellant made misleading statements regarding his interactions with
his supervisor on February 1, 2017, including alleging that his supervisor
belittled, humiliated, and insulted him, and that his behavior was discriminatory,
retaliatory, harassing, and hostile. IAF, Tab 10 at 80. According to the agency, it
investigated the claims made in the appellant’s email and found that both the
appellant’s supervisor and another independent witness contradicted the
appellant’s allegations. Id. at 80-82. Similarly, the administrative judge credited
the testimony of the independent witness that the appellant’s supervisor interacted
professionally with the appellant during the incident, whereas the appellant was
defensive, rude, and tried to provoke his supervisor. ID at 17-19. The
administrative judge further credited the testimony of the appellant’s supervisor
that he merely discussed the appellant’s daily assignments with him and was not
discriminatory, retaliatory, or harassing as the appellant alleged. ID at 15-19.
In specification 3, the agency alleged that, in an email dated February 8,
2017, the appellant made misleading statements alleging that his supervisor had
harassed, belittled, humiliated, and insulted him and was threatening, angry, and
upset when he asked the appellant about work he had done in the last 2 days.
IAF, Tab 10 at 82-83. According to the agency, it investigated the claims made
in the appellant’s email and found that both the appellant’s supervisor and
another independent witness contradicted the appellant’s allegations. Id.
at 83-84. Similarly, the administrative judge credited the testimony of the
appellant’s supervisor that he had merely asked the appellant about the status of
outstanding projects. ID at 21, 23. The administrative judge also credited the5
testimony of the independent witness that the appellant’s supervisor behaved
professionally, but the appellant refused to answer his supervisor’s work-related
questions and instead accused his supervisor of harassing him, raised his voice,
and was confrontational, rude, and unprofessional. ID at 21-23.
On review, the appellant argues that the administrative judge’s credibility
determinations are deficient because he improperly rejected the appellant’s
testimony on the ground that it was conclusory and focused generally on the
biased nature of his coworkers and superiors. PFR File, Tab 1 at 11-14. He also
faults the administrative judge for not citing his testimony, which he contends
was “rich with factual details.” Id. at 12. As set forth above, however, the initial
decision reflects that, for each specification, the administrative judge summarized
the evidence, including the testimony of the appellant and the agency witnesses
concerning the relevant incidents. He found that the agency witnesses gave
thorough, detailed, consistent, and plausible accounts of the relevant events. In
contrast, he found the appellant’s testimony to be conclusory and based on
general commentary about the biased and harassing nature of his coworkers and
superiors rather than facts. He further found that the appellant failed to explain
his contentions that his superiors and coworkers treated him improperly.
Thus, we find that the administrative judge accurately identified the factual
questions in dispute, summarized the evidence, stated which version he believed,
and explained why he found the chosen version of events more credible than the
other. See Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987)
(listing those factors to be considered by an administrative judge in resolving
credibility issues). The Board must give deference to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing and may overturn
such determinations only when it has “sufficiently sound” reasons for doing so.
Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). The
appellant’s arguments on review, which amount to mere disagreement with the6
administrative judge’s findings, do not provide a sufficiently sound basis for
reversal. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987).
The appellant failed to prove his affirmative defense of reprisal for EEO activity.
The administrative judge found that the appellant failed to prove that his
protected EEO activity was a motivating factor in the agency’s decision to
remove him. ID at 32-33. In so finding, he characterized the appellant’s claimed
protected activity as making “100s of EEO incident and other complaints.” Id.
at 32. On review, the appellant argues that the administrative judge’s finding was
erroneous because the agency’s removal action was based on his good-faith
reports of harassment and discrimination made in the emails that formed the basis
of the agency’s three specifications.2 PFR File, Tab 1 at 6-7. The record below
reflects that the appellant similarly raised such an argument before the
administrative judge. Hearing Transcript (HT) at 49 (May 15, 2018). Thus, the
administrative judge should have addressed this argument. Nonetheless, we find
that the record is sufficiently developed to adjudicate the merits of this claim on
review. See Slater v. Department of Homeland Security , 108 M.S.P.R. 419, ¶ 12
(2008), overruled on other grounds by Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 14.
As relevant here, to prove an affirmative defense of retaliation for EEO
activity, an appellant must show that such protected activity was at least a
motivating factor in the agency’s action or decision. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 20-22, 30. Generally speaking,
there are two kinds of EEO activity—opposition activity and participation
2 The appellant also argues that the administrative judge erred in finding that he failed
to prove his claim of reprisal for protected grievance activity because he failed to
identify his alleged protected grievance activity. PFR File, Tab 1 at 6. However, such
an argument does not appear to raise a separate claim to the extent that the appellant
identifies his “protected grievance activities” as the three email complaints of
harassment and discrimination set forth in the agency’s specifications. Id.7
activity. See 42 U.S.C. § 2000e-3(a); Johnson v. Frost , EEOC Appeal No.
11980023, 2001 WL 1353704, at *6 (June 28, 2001). Participation activity
enjoys very broad protection. The Equal Employment Opportunity Commission
(EEOC) has held that, under the participation clause, an employer is prohibited
from disciplining an employee for bringing even a false or malicious charge of
discrimination or from engaging in unreasonable conduct during the course of
EEO proceedings. E.g., Jazmine F. v. Department of Defense , EEOC Petition No.
0320170007, 2023 WL 4653604, at *6-*7 (July 5, 2023); see generally Pettway v.
American Cast Iron Pipe Co. , 411 F.2d 998, 1007 (5th Cir. 1969). The
protections afforded to opposition activity are less extensive; they apply only
when the manner of the opposition is reasonable. Arthur F. v. U.S. Postal
Service, EEOC Appeal No. 2022001340, 2022 WL 16848408, at *3 (Oct. 18,
2022).
In this case, we find that, if the three emails at issue were protected, they
would be protected under the opposition clause and not the participation clause.
The appellant sent these emails outside the context of any EEO proceeding in
order to register his complaints with agency management. He did not send the
emails in furtherance of any ongoing EEO proceeding or as an invocation of the
EEO statutory or regulatory procedures. See Silver v. KCA, Inc. , 586 F.2d 138,
141 (9th Cir. 1978) (stating that the participation clause applies when the
employee has participated in “the machinery set up by Title VII to enforce its
provisions”); see also Celinda L. v. Department of the Army , EEOC Appeal No.
0120143152, 2017 WL 6940947, at *4 (Dec. 9, 2017) (finding that an email
complaining of discrimination to agency management constituted protected
opposition). Therefore, to prevail on his claim of retaliation, the appellant must
show that he had a reasonable, good-faith belief that a violation of anti-
discrimination laws had occurred. See Knight v. Department of Transportation ,
EEOC Appeal No. 01956704, 1998 WL 9025, at *2 (Jan. 5, 1998).8
Although the appellant argues that his complaints were made in good faith,
the administrative judge’s findings establish that the appellant’s claims of
harassment were false and were not reasonably made in good faith. As set forth
above, the administrative judge credited testimony of the agency’s witnesses that
the appellant was not harassed or discriminated against, including testimony that,
rather than being the victim of discrimination, the appellant acted in an
unprofessional, confrontational, and rude manner and accused his supervisor of
harassing him in an effort to dodge questions related to his poor performance. ID
at 12, 18, 22-23. Thus, the administrative judge determined that the appellant’s
allegations of harassment and discrimination were not supported by the record
evidence.
The administrative judge’s findings also establish that the appellant failed
to show that he had a reasonable good-faith belief that he was reporting
discrimination to the extent that he failed to adequately explain the basis for his
belief that he was treated unlawfully. ID at 12. Rather, his emails and testimony
amounted to vague, conclusory, and unconvincing general statements or running
commentary about alleged bias and harassment, unsupported by any factual
details. ID at 11, 15, 23. In particular, regarding specification 1, the
administrative judge found that the appellant’s alleged belief that he was
reporting discrimination was undermined not only by his lack of evidence or
explanation concerning the basis for such a belief, but also by his
acknowledgment in his email that the Park Ranger coworker had complemented
him on his water operations and he had thanked her for taking him on the water.
ID at 12.
Accordingly, because the appellant failed to show that he had a reasonable
good-faith belief that he was reporting harassment and discrimination, his
conduct does not constitute protected opposition activity that can form the basis
of a reprisal claim. See Clark County School District v. Bredeen , 532 U.S. 268,
270-71 (2001) (holding that an employee’s complaints about a single off -color9
remark were not protected opposition because she did not reasonably believe that
the remark constituted a violation of Title VII); see also EEOC Enforcement
Guidance on Retaliation and Related Issues, § IIA(2)(c) (August 25, 2016)
(stating that, for statements or action to be protected opposition, they must be
based on a reasonable good-faith belief that the conduct opposed violates EEO
laws). Nevertheless, the Board finds it appropriate to remind agencies that the
protections for opposition activity, although not as extensive as those for
participation activity, are still broad. Whether opposition activity is reasonable
and in good faith depends entirely on the facts of a given case. In this case, the
evidence clearly shows that the appellant’s allegations of discrimination and
reprisal were neither reasonable nor in good faith. The Board’s holding in this
appeal will not be extended to situations in which an agency disciplines an
employee for making allegations of discrimination or reprisal that are merely
mistaken. See Love v. RE/MAX of America, Inc. , 738 F.2d 383, 385 (10th Cir.
1984).
The appellant’s remaining arguments on review do not provide a basis for
reversal.
Regarding his affirmative defense of whistleblower reprisal, the appellant
argues that the administrative judge erred in finding that he failed to prove
contributing factor because the proposing official testified that he was aware of
the appellant’s August 2016 complaint to the Inspector General (IG). PFR File,
Tab 1 at 9-10. The record reflects that the proposing official testified that he
answered a phone call from someone from the IG’s office on a shared office
telephone line who asked to speak with another employee. HT at 42-43, 117
(May 10, 2018). He later learned from the employee that it appeared the
appellant had filed an IG complaint based on the nature of the questions asked by
the IG employee. Id. The proposing official further testified that he assumed that
the IG complaint had been filed by the appellant based upon his interactions with
the appellant in a prior complaint. Id. at 43. Thus, it appears that the proposing10
official was aware of the appellant’s August 2016 IG complaint when he proposed
the appellant’s removal on February 27, 2017. Accordingly, we modify the initial
decision to find that the appellant proved contributing factor under the
knowledge/timing test. See 5 U.S.C. § 1221(e)(1) (stating that an employee may
prove contributing factor through circumstantial evidence 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 reasonable person could conclude
that the protected activity was a contributing factor); see also Inman v.
Department of Veterans Affairs , 112 M.S.P.R. 280, ¶ 12 (2009) (noting that the
Board has found that a period of 1 year between an appellant’s protected activity
and the agency’s personnel action is sufficient to satisfy the knowledge/timing
test). Nonetheless, the administrative judge found that the agency proved by
clear and convincing evidence that it would have removed the appellant absent his
protected activity, and the appellant does not challenge the administrative judge’s
findings on this issue. ID at 49-51.
The appellant also reiterates his argument that the agency violated his due
process rights by failing to afford him a reasonable amount of time to respond to
the notice of proposed removal, but he fails to identify any specific error in the
administrative judge’s analysis. PFR File, Tab 1 at 14. The record reflects that
the administrative judge considered and rejected this argument, finding that the
agency granted the appellant two extensions and that nothing in the record
suggested that the agency failed to comply with 5 U.S.C. § 7513(b). ID at 46.
The appellant also appears to raise new allegations of due process violations,
including that the agency failed to provide him with certain documents and used
agency investigators who were not properly trained to investigate his complaints
of harassment. PFR File, Tab 1 at 14-15. We decline to consider these new
claims for the first time on review to the extent that the appellant has not
explained why he could not have raised them below. See Banks, 4 M.S.P.R.
at 271. 11
The appellant also argues that the administrative judge erred in finding that
he failed to prove his affirmative defenses of discrimination based on sexual
orientation, sex, gender, gender stereotyping, gender nonconformity, religion,
age, or disability. PFR File, Tab 1 at 22-23. He summarily argues that the
administrative judge failed to consider his extensive testimony regarding his
affirmative defenses, but he fails to specify such testimony in any detail or
identify any specific error in the administrative judge’s analysis. Id. at 23; see
5 C.F.R. § 1201.115(a)(2) (stating that a petitioner who alleges that the
administrative judge made erroneous findings of material fact must explain why
the challenged factual determination is incorrect and identify specific evidence in
the record that demonstrates the error). Accordingly, we find no error in the
administrative judge’s analysis; the initial decision reflects that the administrative
judge considered the appellant’s testimony concerning the various comments,
conversations, and events that the appellant believed evidenced discrimination.
ID at 27-44.
The penalty of removal was reasonable.
On review, the appellant generally disagrees with the reasonableness of the
penalty of removal. PFR File, Tab 1 at 23-27. In particular, he argues that his
offenses were not intentional and had no effect on the agency’s reputation. Id.
at 23-24. However, the deciding official testified that he considered the nature
and seriousness of the offense and found the appellant’s conduct in making
misleading statements accusing his supervisor and coworkers of mistreatment to
be serious. HT at 51 (May 11, 2018). He also acknowledged that the offense
would not have a direct effect upon the reputation of the agency. IAF, Tab 10
at 63. The appellant also argues that the penalty is not consistent with that
imposed upon other employees or the agency’s table of penalties, but he cites no
evidence in the record in support of such assertions. PFR File, Tab 1 at 24. The
appellant argues that the deciding official should have considered his
discriminatory work environment as a mitigating factor. Id. However, we find12
this argument unavailing because the administrative judge properly found that the
appellant’s claims of discrimination were not supported by the record. Finally,
the appellant also argues that the agency erred in relying on his prior discipline,
which he contends that he “grieved to the Agency EEO office,” and that the
administrative judge erred in not independently analyzing the merits of the prior
discipline. Id. at 27. However, the appellant did not challenge the validity of the
prior discipline before the administrative judge. See, e.g., Rosenberg v.
Department of Transportation , 105 M.S.P.R. 130, ¶ 34 (2007) (stating that Board
review of prior agency discipline is only required when the appellant has actually
challenged the validity of her prior discipline on appeal);3 see also Banks,
4 M.S.P.R. at 271.
We decline to consider the appellant’s untimely uncertified motions for
interlocutory appeal.
On review, the appellant asserts that he is appealing three interlocutory
orders issued by the administrative judge on the grounds that they were
“improperly granted and introduced harmful error.” PFR File, Tab 1 at 27-28.
These orders include a December 27, 2017 order denying the appellant’s request
for an extension of time and for additional witnesses, a January 2, 2018 order
striking his request for preservation of evidence, and a May 9, 2018 order
allowing the agency to supplement the record. Id.
An interlocutory appeal is an appeal to the Board of a ruling made by a
judge during a proceeding that is of such importance to the proceeding that it
requires the Board’s immediate attention. 5 C.F.R. § 1201.91. Board regulations
require parties seeking interlocutory review to “file a motion for certification
within 10 days of the date of the ruling to be appealed” with the administrative
judge. 5 C.F.R. § 1201.93(a). Here, the appellant did not file a motion for
certification with the administrative judge within 10 days, or at all, with respect
3 Even if the appellant had raised this issue before the administrative judge, it appears
that his prior discipline would meet the criteria for limited review under Bolling v.
Department of the Air Force , 9 M.S.P.R. 335, 339-40 (1981).13
to any of the orders he now seeks to challenge. Accordingly, the Board will not
consider his uncertified motions for interlocutory appeal. See, e.g., Sparrow v.
Department of the Navy , 26 M.S.P.R. 335, 336 n.* (1985).
The appellant’s motion to supplement the record is denied.
The appellant moves to supplement the record with various evidence and
arguments, but he has not explained how such evidence and arguments are
relevant to his claims or why such evidence and arguments could not have been
raised before the administrative judge. PFR File, Tab 1 at 28, 852-97.
Accordingly, we decline to consider such evidence and arguments for the first
time on review. See Banks, 4 M.S.P.R. at 271; see also Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980).
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 14
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you15
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 16
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 17
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.18 | Franken_Kevin_M_SF-0752-18-0047-I-1_Final_Order.pdf | 2024-09-11 | KEVIN M. FRANKEN v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-18-0047-I-1, September 11, 2024 | SF-0752-18-0047-I-1 | NP |
525 | https://www.mspb.gov/decisions/nonprecedential/Mouton-Miller_Deborah_N_AT-1221-19-0742-W-4__AT-1221-21-0039-W-4Final Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH N. MOUTON-MILLER,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBERS
AT-1221-19-0742-W-4
AT-1221-21-0039-W-4
DATE: September 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant.
Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant.
Marlon Martinez , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed petitions for review of the initial decisions in MSPB
Docket Nos. AT-1221-19-0742-W-4 (0742 appeal) and AT-1221-21-0039-W-4
(0039 appeal), which denied her requests for corrective action in these individual
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
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).
right of action (IRA) appeals. Generally, we grant petitions such as these ones
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). For
the reasons discussed below, we JOIN these appeals. After fully considering the
filings in these appeals, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petitions for review. Therefore, we
DENY the petitions for review and AFFIRM the initial decisions, except as
expressly MODIFIED in Mouton-Miller v. Department of Homeland Security ,
MSPB Docket No. AT-1221-19-0742-W-1, to clarify the administrative judge’s
findings regarding the first Carr factor.
JOINT BACKGROUND
¶2Effective April 2, 2017, the agency’s Office of the Inspector General
promoted the appellant to a GS-14 Supervisory Auditor, subject to her successful
completion of a 1-year supervisory probationary period. Mouton-Miller v.
Department of Homeland Security , MSPB Docket No. AT-1221-19-0742-W-1,
Appeal File (0742 IAF), Tab 15 at 28. In September 2017 and February 2018, the
appellant sent emails to agency management officials disclosing that audit
templates contained in the agency’s internal audit management and template
repository system, TeamMate, were missing some of the steps necessary to
perform audits in accordance with Generally Accepted Government Auditing
Standards (GAGAS) (also called the “Yellow Book” standard), as required by the2
Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat. 1101.
Mouton-Miller v. Department of Homeland Security , MSPB Docket No. AT-1221-
21-0039-W-4, Appeal File (0039-W-4 AF), Tab 13 at 57-63. Effective March 29,
2018, the appellant’s then first-line supervisor issued a memorandum informing
her that she had failed to successfully complete her supervisory probationary
period and that she would be reassigned to a position as a non-supervisory GS-14
Communications Analyst, effective immediately. 0742 IAF, Tab 15 at 26-27.
¶3On June 11, 2019, the appellant filed a complaint with the Office of Special
Counsel (OSC) alleging that the agency curtailed her supervisory probationary
appointment in retaliation for her protected disclosures concerning the agency’s
failure to comply with the GAGAS standards. 0742 IAF, Tab 10 at 8-46. By a
letter dated August 27, 2019, OSC closed its investigation into the appellant’s
complaint and notified her of her Board appeal rights. Id. at 47-48. On
August 28, 2019, the appellant filed an IRA appeal challenging the agency’s
decision to reassign her to a nonsupervisory position during her supervisory
probationary period. 0742 IAF, Tab 1.
¶4Following her reassignment to a nonsupervisory position in March 2018, the
appellant applied to but was not selected for several detail assignments and
vacancies within the agency, as well as additional vacancies at other agencies.
Specifically, in August 2018, she made an inquiry to her supervisor regarding a
potential detail opportunity within the agency’s Audits and Inspections Quality
Assurance Division (IQO) but was ultimately not selected for the detail
assignment. Mouton-Miller v. Department of Homeland Security , MSPB Docket
No. AT-1221-21-0039-W-1, Initial Appeal File (0039 IAF), Tab 1 at 10;
0039-W-4 AF, Tab 13 at 72-77. On December 19, 2018, she applied for a
Supervisory Auditor position with the Defense Contract Audit Agency (DCAA)
within the Department of Defense and was notified that she was not selected for
that position on January 18, 2019. 0039 IAF, Tab 1 at 11. On March 4, 2019, she
volunteered for a second detail opportunity with IQO and was informed on3
March 19, 2019, that she was not selected for the detail. Id.; 0039-W-4 AF,
Tab 13 at 29. In February 2020, she applied for a GS-15 position as a Director of
Quality, Management, and Training (QMT) within the agency, and was
interviewed for the position on February 20, 2020, but was ultimately not
selected. 0039-W-4 AF at 16, 21-24; 0039 IAF, Tab 1 at 7-9. Finally, she
applied to but was not selected for a position as a Lead Auditor with the
Environmental Protection Agency (EPA) in or around April 2020. 0039 IAF,
Tab 1 at 11-12.
¶5On or about April 22, 2020, while her first IRA appeal was pending before
an administrative judge, the appellant filed a second complaint with OSC alleging
that the relevant agencies failed to promote or appoint her to the above-identified
positions in retaliation for her protected disclosures concerning the agency’s
failure to comply with GAGAS standards. 0039 IAF, Tab 4 at 10, Tab 5. On
August 23, 2020, after more than 120 days had elapsed since the appellant filed
her second OSC complaint, she filed a second IRA appeal alleging that agency
officials hindered or obstructed her ability to be appointed to or promoted to the
identified vacancies and detail opportunities in retaliation for her GAGAS
disclosure. 0039 IAF, Tab 1, Tab 4 at 10. Both appeals were eventually
reassigned to a new administrative judge. Mouton-Miller v. Department of
Homeland Security , MSPB Docket No. AT-1221-19-0742-W-4, Appeal File
(0742-W-4 AF), Tab 15; 0039-W-4 AF, Tab 6.
¶6After holding the appellant’s requested hearings in each of the IRA appeals,
0742-W-4 AF, Tab 24; 0039-W-4 AF, Tab 28, the administrative judge issued
separate initial decisions, 0742-W-4 AF, Tab 26 (0742 ID); 0039-W-4 AF, Tab 30
(0039 ID). In the first initial decision, dated November 9, 2022, he determined
that the appellant had exhausted with OSC her claim that the agency ended her
supervisory probationary period and reassigned her to a nonsupervisory position
in retaliation for her disclosure concerning the agency’s failure to comply with
the GAGAS standards. 0742 ID at 7-8. He also incorporated the prior4
administrative judge’s finding that the Board had jurisdiction over the appellant’s
IRA appeal, a finding that neither party challenges on review. 0742 ID at 2; 0742
IAF, Tab 17. The administrative judge also determined that the appellant proved
by preponderant evidence that she engaged in whistleblowing activity by making
a protected disclosure under 5 U.S.C. § 2302(b)(8) that the agency violated a rule
in connection with her GAGAS disclosures and that she was subjected to a
covered personnel action in retaliation for her disclosure based on her
reassignment to a nonsupervisory position. 0742 ID at 8. He further concluded
that the appellant proved that her GAGAS disclosure was a contributing factor in
the agency’s decision to reassign her. 0742 ID at 8. However, he determined that
the agency proved by clear and convincing evidence that it would have reassigned
the appellant even in the absence of her protected disclosure and consequently
found that she was not entitled to corrective action on her claim. 0742 ID at 9-16.
¶7In the second initial decision, dated January 25, 2023, the administrative
judge concluded that the appellant established that she exhausted with OSC her
claim that in retaliation for her protected disclosure of the agency’s failure to
adhere to GAGAS standards, she was denied promotion or appointment
opportunities for the following positions: detail assignments to IQO in
August 2018 and March 2019; a Supervisory Auditor position with DCAA in
January 2019; a Director of QMT position in March 2020; and a Lead Auditor
position with EPA in April 2020. 0039 ID at 2, 7-8; 0039-W-4 AF, Tab 16. He
also found that the Board had jurisdiction over the appellant’s IRA appeal and
that she was entitled to a hearing on the merits, which neither party challenges on
review. 0039 ID at 3; 0039-W-4 AF, Tab 16 at 3-7. He further concluded that
the appellant proved by preponderant evidence that she made a protected
disclosure in connection with the agency’s failure to adhere to GAGAS standards
and that she was subjected to the above covered personnel actions. 0039 ID
at 7-8; 0039-W-4 AF, Tab 16. 5
¶8Addressing whether the appellant’s disclosure was a contributing factor in
any of the nonselection decisions, the administrative judge determined that, aside
from the March 2019 IQO detail, the appellant failed to prove by preponderant
evidence that her whistleblowing disclosure was a contributing factor in any of
the remaining nonselection decisions. 0039 ID at 8-10, 12-15. Regarding the
March 2019 IQO detail nonselection, the administrative judge concluded that the
appellant proved by preponderant evidence that her GAGAS disclosure
contributed to the agency’s decision not to select her for this detail. 0039 ID
at 10-12. He nevertheless concluded that the agency proved by clear and
convincing evidence that it would not have selected her for the position even in
the absence of her protected disclosure, and so she was not entitled to corrective
action on her appeal. 0039 ID at 15-19.
¶9The appellant timely filed a petition for review of each initial decision.
Mouton-Miller v. Department of Homeland Security , MSPB Docket No. AT-1221-
19-0742-W-4, Petition for Review (0742 PFR) File, Tab 1; Mouton-Miller v.
Department of Homeland Security , MSPB Docket No. AT-1221-21-0039-W-4,
Petition for Review (0039 PFR) File, Tab 5. The agency filed responses in
opposition to each petition for review. 0742 PFR File, Tab 3; 0039 PFR File,
Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
We join these appeals.
¶10Joinder of two or more appeals filed by the same appellant may be
appropriate when joinder would expedite processing of the appeals and not
adversely affect the interests of the parties. Tarr v. Department of Veterans
Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); Boechler v. Department of the Interior ,
109 M.S.P.R. 542, ¶ 14 (2008), aff’d per curiam , 328 F. App’x 660 (Fed. Cir.
2009); 5 C.F.R. § 1201.36(a)(2), (b). We join these appeals on review because
the facts are interrelated, and joinder will expedite processing without adversely6
affecting the interests of the parties. Specifically, the two IRA appeals concern
the same alleged protected disclosure, and all of the allegedly retaliatory
personnel actions occurred within the 2-year period from 2018 through 2020 and
involved many of the same agency officials. Accordingly, joinder of these
appeals is appropriate.
Legal standard applicable to IRA appeals.
¶11The Board has jurisdiction over an IRA appeal if the appellant proves by
preponderant evidence that she exhausted her administrative remedy before OSC
and makes nonfrivolous allegations that (1) she made a protected disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).
Edwards v. Department of Labor , 2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967,
2023 WL 4398002 (Fed. Cir. July 7, 2023); Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016).
¶12To establish the contributing factor criterion at the jurisdictional stage, the
appellant need only raise a nonfrivolous allegation that the fact of, or the content
of, the disclosure or activity was one factor that tended to affect the personnel
action in any way. Abernathy v. Department of the Army , 2022 MSPB 37, ¶ 15.
One way to establish this criterion is the knowledge/timing test, in which the
appellant may demonstrate that the official taking the personnel action knew of
the disclosure and that the personnel action occurred within a period of time such
that a reasonable person could conclude that the disclosure was a contributing
factor in the personnel action. Id. Personnel actions occurring within 1 to 2 years
after the protected disclosure are sufficient to meet the timing portion of the test.
Id. The knowledge portion of the knowledge/timing test can be met with
allegations of either actual or constructive knowledge. Id. An appellant may
establish an official’s constructive knowledge of a protected activity by7
demonstrating that an individual with actual knowledge of the activity influenced
the official accused of taking the retaliatory action. Id.
¶13However, the knowledge/timing test is not the only way to prove
contributing factor. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14
(2012). If an appellant fails to satisfy the knowledge/timing test, the Board will
also consider other evidence, such as evidence pertaining to the strength or
weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed towards the officials taking the action,
and whether these individuals had a desire or motive to retaliate against the
appellant. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 15;
Dorney, 117 M.S.P.R. 480, ¶ 15.
¶14Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 5.
If she does so, the agency is given an opportunity to prove, by clear and
convincing evidence, that it would have taken the same personnel action in the
absence of the protected disclosure or activity. 5 U.S.C. § 1221(e)(2); Salerno,
123 M.S.P.R. 230, ¶ 5. In determining whether an agency has met this burden,
the Board will consider all of the relevant factors, including the following (the
“Carr factors”): (1) the strength of the agency’s evidence in support of the
action; (2) the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and (3) any evidence that the
agency takes similar actions against employees who are not whistleblowers but
who are otherwise similarly situated. Soto v. Department of Veterans Affairs ,
2022 MSPB 6, ¶ 11; see also Carr v. Social Security Administration , 185 F.3d
1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as discrete
elements, each of which the agency must prove by clear and convincing evidence.
Rather, the Board will weigh the factors together to determine whether the
evidence is clear and convincing as a whole. Lu v. Department of Homeland8
Security, 122 M.S.P.R. 335, ¶ 7 (2015). The Board considers all of the evidence
presented, including evidence that detracts from the conclusion that the agency
met its burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v. Department of
Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). If the agency fails to meet its
burden, the Board will order corrective action in favor of the appellant.
Abernathy, 2022 MSPB 37, ¶ 17.
We modify the initial decision in the 0742 appeal to clarify the administrative
judge’s findings regarding the first Carr factor but still agree with his conclusion
that this factor favors the agency.
¶15The appellant argues on review in the 0742 appeal that the administrative
judge erred by finding that each of the Carr factors weighed in the agency’s
favor. 0742 PFR File, Tab 1 at 9-11. We find no reason to disturb the
administrative judge’s finding that the agency met its burden of proving by clear
and convincing evidence that it would have reassigned the appellant to a
nonsupervisory position in the absence of her protected disclosure, but we take
this opportunity to clarify his findings as to the first Carr factor.
¶16In the initial decision, the administrative judge concluded that the first Carr
factor, which concerns the strength of the agency’s evidence in support of its
action, favored the agency. 0742 ID at 9-13. Specifically, he determined that the
agency’s stated reason for reassigning the appellant to a nonsupervisory position
based on her failure to complete her supervisory probationary period was
supported by the record, acknowledging that even though she had a positive
Fiscal Year (FY) 2017 performance appraisal rating, her supervisors and other
agency management officials credibly identified performance deficiencies in the
period immediately prior to the appellant’s reassignment, including her
micromanagement of her subordinates and her unwillingness to receive
constructive criticism and feedback. 0742 ID at 9-12.
¶17In making this finding, the administrative judge highlighted testimony from
the appellant’s second-level supervisor recounting that she expressed concerns to9
the appellant about how she managed her team and about how one of the audits
the appellant was managing was progressing. 0742 ID at 11-12; 0742 ID
at 11-12; 0742-W-4 AF, Tab 24, Hearing Recording (0742 HR) 3 at 1:30-8:45
(testimony of the appellant’s second-line supervisor). The second-line supervisor
also recounted instances when the appellant repeatedly cut her off and accused the
supervisor of “disrespect” and of using an inappropriate “tone,” which the
appellant’s first-line supervisor considered to be inappropriate and for which he
counseled the appellant.2 0742 ID at 11-12; 0742 HR 2 at 5:30-10:35 (testimony
of the appellant’s first-line supervisor); 0742 HR 3 at 9:30-21:00 (testimony of
the appellant’s second-line supervisor).
¶18Finally, in finding that the agency established that the reassignment action
was supported and that the first Carr factor favored the agency, the administrative
judge opined that the Board and the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) had not articulated any specific guidance for applying the clear
and convincing evidentiary standard to the “very low threshold” for terminations
of probationary employees, noting that agencies have broad discretion in
determining an employee’s fitness for a position during the probationary period.
0742 ID at 9, 12-13 (citing Lewis v. Department of the Army , 63 M.S.P.R. 119,
126 (1994)); see Levy v. Department of Labor , 118 M.S.P.R. 619, ¶ 11 (2012)
(explaining that the Board lacks jurisdiction over the return of a supervisory
employee to his prior position during his probationary period) . He nevertheless
acknowledged that the Board has held that the strength of the agency’s evidence
supporting its action must not turn on the protections to which an appellant is
entitled and determined that the agency’s reasons for terminating the appellant’s
2 Additionally, addressing the appellant’s FY 2017 performance appraisal, the
appellant’s former first-line supervisor testified that although the appellant received a
summary rating of “Achieved Excellence,” the highest possible rating in the agency’s
4-tiered performance rating scale, she received “Exceeded Expectations” ratings for the
critical elements of “Communication,” “Teamwork and Cooperation,” and
“Leadership,” which were categories the supervisor identified as critical in assessing
the appellant’s supervisory potential. 0742 HR 1 at 17:05-23:40 (testimony of the
appellant’s former first-line supervisor). 10
supervisory appointment during her probationary period were credibly explained
in finding that the first Carr factor favored the agency. 0742 ID at 13.
¶19In Lewis v. Department of the Army , the case the administrative judge cited
for the proposition that the agency proved by clear and convincing evidence that
it would have terminated the appellant absent her protected disclosures, the Board
observed that the appellant in that case was serving in a probationary period at the
time his supervisor decided to terminate his employment and credited the
supervisor’s testimony expressing concern that the appellant would continue to
encounter issues if granted a permanent position, noting that the supervisor’s
stated concern was consistent with the Office of Personnel Management’s
regulations “mandating that an agency use the probationary period to determine
an employee’s fitness, and that it ‘ shall terminate his services during this period
if he fails to demonstrate fully his qualifications for continued employment.’”
Lewis, 63 M.S.P.R. at 126. However, in Hugenberg v. Department of Commerce ,
120 M.S.P.R. 381, ¶ 19 & n.4 (2013), the Board acknowledged the appellant’s
argument that the administrative judge erred by referring to him as a
“probationary employee,” and by further finding that the agency’s stated reason
for terminating him was a “facially legitimate reason for termination” and that the
agency had “great latitude in assessing whether to retain [a probationary]
employee” during the probationary period, in the context of analyzing whether the
agency met its clear and convincing evidence burden. The Board clarified that
despite the appellant’s status as a probationer, “the evidentiary burden on the
agency with respect to a whistleblower reprisal claim is no less than when the
appellant is a tenured employee,” and the agency “must still show by clear and
convincing evidence that it would have taken the same personnel action in the
absence of whistleblowing.” Id., ¶ 19 n.4.
¶20Consequently, to whatever extent the administrative judge in this case may
have implied that a lesser burden than “clear and convincing evidence” is
applicable in IRA appeals when the appellant is serving in a probationary period,11
we modify the initial decision to clarify the appropriate standard. Nevertheless, a
different result is not warranted here because we agree with the administrative
judge’s ultimate conclusion that the entirety of the record, including the
documentary and testimonial evidence from agency management officials
addressing the appellant’s performance and management deficiencies, supports a
finding that the agency proved by clear and convincing evidence that it would
have reassigned the appellant to a nonsupervisory position even in the absence of
her protected disclosure.
The administrative judge appropriately weighed the second and third Carr factors.
¶21Addressing the second Carr factor, the appellant argues on review that the
administrative judge improperly discounted the importance of her whistleblowing
disclosure and the fact that steps were being taken at the highest levels to address
deficiencies in the agency’s audit process in finding no agency motive to retaliate
against the appellant because of her disclosure. 0742 PFR File, Tab 1 at 10-11;
0742 ID at 13-14. As the administrative judge correctly observed, although
several audits were rescinded following a peer review of the agency’s auditing
process by an external agency, there is no evidence in the record that the
appellant’s disclosures regarding GAGAS-related deficiencies had any relation to
the rescinded audits or that any of the agency officials involved in the
probationary termination decision were implicated by the appellant’s disclosure.
0742 ID at 13-14; see Miller v. Department of Justice , 842 F.3d 1252, 1261-62
(Fed. Cir. 2019) (noting that in analyzing the second Carr factor, retaliatory
motive should be viewed broadly, explaining that “[t]hose responsible for the
agency’s performance overall may well be motivated to retaliate even if they are
not directly implicated by the disclosures, and even if they do not know the
whistleblower personally, as the criticism reflects on them in their capacities as
managers and employees”).
¶22There is also no evidence that the appellant had any involvement in the
single peer-reviewed audit that was rescinded due to noncompliance with12
GAGAS, and agency officials testified consistently that the appellant’s
disclosures of the shortcoming of the agency’s audit templates had no bearing on
the decision to terminate her supervisory probationary period. 0742-W-4 AF,
Tab 22 at 108-10; 0742 HR 2 at 26:00-27:30 (testimony of the appellant’s former
first-line supervisor) (denying that he gave any weight to the appellant’s
whistleblowing disclosure in deciding to terminate the appellant’s probationary
period, noting that the audit templates were “not cast in stone,” and that it was his
expectation that employees would alter the templates to resolve any deficiencies
that may have been discovered); 0742 HR 3 at 22:10-23:30 (testimony of the
appellant’s second-line supervisor) (stating that the appellant’s whistleblowing
disclosure “meant nothing to [her]” and had “no effect” on her decision to curtail
the appellant’s probationary period). Accordingly, we find no reason to disturb
the administrative judge’s findings on this issue.
¶23Regarding the third Carr factor, which considers whether the agency takes
similar actions against similarly situated non-whistleblowers, the administrative
judge concluded that the purported comparator the appellant presented was not a
valid comparator for the following reasons: (1) unlike the appellant, she was not
serving in a supervisory probationary period; (2) the performance deficiency the
appellant identified—the retraction of an audit—was not the type of deficiency
that ordinarily would result in a supervisory termination; and (3) the agency
officials consistently testified that the purported comparator was not at fault for
the alleged deficiency that resulted in the retraction of an audit. 0742 ID
at 14-15. The appellant argues on review that the employee was a valid
comparator because she performed the same essential job functions as the
appellant and was managed by the same supervisors. 0742 PFR File, Tab 1 at 11.
¶24Under the third Carr factor, the Board considers evidence that the agency
takes similar actions against employees who are not whistleblowers but who are
otherwise similarly situated. Carr, 185 F.3d at 1323. Because the burden rests
with the agency to prove that it would have taken the same action absent the13
protected whistleblowing activity, the agency’s failure to produce comparator
evidence if it exists “may be at the agency’s peril,” and “may well cause the
agency to fail to prove its case overall.” Soto, 2022 MSPB 6, ¶ 18 (quoting
Whitmore, 680 F.3d at 1374-75). Additionally, the Federal Circuit has made clear
that the “importance and utility [of the third Carr factor] should not be
marginalized by reading it so narrowly as to eliminate it as a helpful analytical
tool.” Whitmore, 680 F.3d at 1374.
¶25We nevertheless agree with the administrative judge that the employee the
appellant identified is not a valid comparator. As the administrative judge
correctly observed, the appellant’s supervisory period was ultimately curtailed
based on her performance and management deficiencies, particularly related to
her inability to receive constructive feedback and to adequately manage her team ,
and not due to the retraction of an audit. 0742 ID at 11-12; 0742 HR 2
at 5:30-10:35 (testimony of the appellant’s first-line supervisor discussing the
appellant’s supervisory deficiencies during the period immediately preceding the
termination of her probationary period); 0742 HR 3 at 1:30-8:45, 9:30-21:00
(testimony of the appellant’s second-line supervisor discussing the same).
Consequently, the purported comparator employee, who had an audit retracted, is
not a valid comparator.
¶26In sum, we agree with the administrative judge’s finding that all three Carr
factors weigh in the agency’s favor and so the agency proved by clear and
convincing evidence that it would have terminated the appellant’s supervisory
probationary period even in the absence of her protected whistleblowing activity.
Consequently, we affirm the administrative judge’s finding that the appellant is
not entitled to corrective action in the 0742 appeal.
We decline to disturb the administrative judge’s findings in the 0039 appeal and
affirm the initial decision in that appeal.
¶27The appellant argues on review in the 0039 appeal that the administrative
judge erred by finding that she failed to prove that her protected disclosure was a14
contributing factor in her nonselection for the August 2018 IQO detail, the
February 2020 QMT Director position, and the April 2020 EPA Lead Auditor
position.3 0039 PFR File, Tab 5 at 10-24. She also argues that the administrative
judge erred by finding that the agency proved by clear and convincing evidence
that the agency would have failed to select her for the 2019 IQO detail absent her
protected disclosure. Id. at 24-29.
2018 IQO detail nonselection
¶28Regarding her nonselection for the August 2018 IQO detail, the appellant
argues that her second-line supervisor, who had knowledge of her protected
disclosure, provided information about the detail opportunity to her first-line
supervisor, thereby influencing the decision not to select her for the detail and
that the administrative judge erred by determining that her claim that the
second-line supervisor influenced the nonselection decision was “purely
speculative.” 0039-W-4 AF, Tab 5 at 8, 11, 13-14.
¶29In the initial decision, the administrative judge considered but rejected the
appellant’s argument that her second-line supervisor influenced the decision not
to select her for this detail, noting that the supervisor credibly testified that her
only communication to the appellant’s first-line supervisor regarding the detail
was to inform her that a memorandum would be issued regarding the application
process for the position. 0039-W-4 AF at 9. Additionally, although the appellant
alleged that her second-line supervisor influenced her first-line supervisor by
discussing the detail with her, as she acknowledges on review, her first-line
supervisor was not the selecting official for the detail; instead, the Assistant
3 Aside from stating that she was not referred for the Supervisory Auditor position with
DCAA “although she was referred for the types of positions in the past,” the appellant
does not otherwise address this nonselection decision or the administrative judge’s
finding that she had not provided any documentary or testimonial evidence regarding
her nonselection for the DCAA position and so she failed to meet her jurisdictional
burden for this position. 0039 PFR File, Tab 5 at 23; 0039 ID at 10. Accordingly, we
find no reason to disturb the administrative judge’s findings regarding this purported
personnel action and have not addressed it further. 15
Inspector General (AIG) for Audits was the selecting official, and the
administrative judge correctly determined that the appellant had not provided any
evidence that her second-line supervisor influenced the AIG’s decision not to
select the appellant for the position. 0039 PFR File, Tab 5 at 12; 0039-W-4 AF,
Tab 13 at 33-36; 0039 ID at 9-10.
¶30Regarding other evidence, such as evidence pertaining to the strength or
weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed towards the officials taking the action,
and whether these individuals had a desire or motive to retaliate against the
appellant, as the administrative judge noted, the appellant did not call the
selecting official for this position, the AIG, to testify at the hearing, and there is
no other evidence in the record regarding the agency’s reasons for choosing the
eventual selectee for this position.4 Additionally, there is no evidence indicating
that the appellant’s whistleblowing disclosure concerning the agency’s failure to
comply with the GAGAS standards was personally directed at the AIG. Further,
although the appellant testified that all of the Deputy Assistant Inspectors General
had input in the decision not to select her for the 2018 IQO detail—a group that
would have included the appellant’s second-line supervisor who was aware of her
whistleblowing activity—she has not offered any evidence or argument indicating
4 The appellant also argues on review that the agency committed harmful error by
failing to inform her that two of her potential witnesses had retired from Federal service
prior to the scheduled hearing and that the administrative judge erred when he “abused
his discretion and did not enforce compliance” on the agency based on its failure to
inform the appellant of the retirement of the two potential witnesses. 0039 PFR File,
Tab 5 at 11-13. As the agency correctly notes, the administrative judge approved both
retired former Federal employees as witnesses for the appellant prior to the hearing, and
the appellant did not object to the prehearing conference summary informing her that
she was responsible for producing both witnesses at the hearing. 0039-W-4 AF, Tab 23
at 4-5. Additionally, the appellant did not seek subpoenas for either witness and did not
raise any objections on the record at the hearing regarding the unavailability of either
witness. 0039-W-4 AF, Tab 28, Hearing Recording 5 at 0:15-0:50 (statements by the
appellant’s attorney acknowledging that both witnesses had retired from Federal service
and were unavailable to testify at the hearing); see 5 C.F.R. § 1201.85 (setting forth the
procedures by which parties may seek and enforce Board subpoenas for documents or
testimony).16
that her second-line supervisor influenced the AIG’s decision not to select her for
this position. 0039-W-4 AF, Tab 28, Hearing Recording (0039 HR) at 7:30-8:35
(testimony of the appellant).5 Accordingly, we conclude that the appellant has
also failed to establish contributing factor based on evidence other than
knowledge/timing evidence. See Dorney, 117 M.S.P.R. 480, ¶ 15.
March 2020 QMT Director nonselection
¶31Regarding her nonselection for the QMT Director position in March 2020,
the appellant principally challenges the administrative judge’s credibility
determinations. 0039 PFR File, Tab 5 at 16-18, 26. Specifically, she asserts that
the testimony of one of the officials who served on the selection panel for this
position concerning the participation of another panel member was inconsistent
and contradictory, and notes that an administrative judge in a different Board
appeal declined to credit that witness’s testimony. Id. She also argues that
agency officials provided varying and inconsistent testimony about the reason she
was not selected for the position and so the administrative judge erred by
crediting their testimony concerning this nonselection. Id. at 26.
¶32The appellant’s challenges to the administrative judge’s credibility
determinations do not warrant reaching a different conclusion here. The
evaluation of witness credibility is a matter within the administrative judge’s
discretion, and an administrative judge’s credibility determinations are “virtually
unreviewable.” Frey v. Department of Labor , 359 F.3d 1355, 1361 (Fed. Cir.
2004); Mithen v. Department of Veterans Affairs , 122 M.S.P.R. 489, ¶ 13 (2015),
aff’d, 652 F. App’x 971 (Fed. Cir. 2016). The Board will not disturb an
administrative judge’s findings when he considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility.
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997); Broughton v.
5 Indeed, the appellant failed to elicit any testimony from her second-line supervisor
about any potential influence she may have had over the appellant’s nonselection for the
August 2018 IQO detail. 0039 HR 3 at 31:20-53:46 (testimony of the appellant’s
second-line supervisor).17
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987). The
Board must defer to an administrative judge’s credibility determinations when
they are based, explicitly or implicitly, on observing the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). Moreover, mere disagreement with an
administrative judge’s credibility determinations and findings of fact fail to
provide a basis for granting review. Diggs v. Department of Housing and Urban
Development, 114 M.S.P.R. 464, ¶ 8 (2010).
¶33Regarding the appellant’s specific challenge to the testimony by one of the
panel members for the QMT position, the appellant relies on inconsistencies in
his testimony concerning whether the appellant’s second-line supervisor served as
a panel member for the selection for this vacancy in arguing that his testimony
was not credible, highlighting his testimony stating at different times that the
second-line supervisor was not on the panel and at other times that he could not
recall or was uncertain whether she was on the panel. 0039 PFR File, Tab 5
at 16-18. She also asserts that proceedings in a prior Board appeal were “halted”
and the appeal was eventually resolved against the agency when the
administrative judge deciding that appeal was presented with information that
called into question this witness’s credibility. Id. at 18.
¶34Here, although the administrative judge did not make specific
demeanor-based credibility determinations or cite to the Board’s decision in
Hillen v. Department of the Army , 35 M.S.P.R. 453 (1987), in the initial decision,
he heard live testimony from the witnesses, and his decision to credit specific
testimony must be deemed to be at least implicitly based upon witness demeanor.
See Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009).
Further, the only testimony the administrative judge cited from this panelist
regarding this vacancy concerned whether the appellant’s second-line supervisor
participated in interviews for the QMT Director vacancy, and the other two18
panelists, as well as the appellant’s second-line supervisor, all provided
consistent testimony stating that the second-line supervisor was involved in the
panel but did not participate in the appellant’s interview. 0039 HR 2 at 5:30-9:03
(testimony of interview panelist); 0039 HR 3 at 35:50-37:50 (testimony of the
appellant’s second-line supervisor); see Hillen, 35 M.S.P.R. at 458 (identifying
facts an administrative judge should consider in making credibility findings,
including the consistency or inconsistency of a witness’s version of events with
other evidence). The administrative judge ultimately concluded that the appellant
had not provided any evidence demonstrating that her second-level supervisor
informed or otherwise influenced the other panel members in the decision not to
select the appellant, and the appellant has not provided any reason to disturb this
finding on review. 0039 ID at 13-14. Consequently, to the extent the
administrative judge erred by relying on the panelist’s testimony on this point,
any such error is immaterial and was not prejudicial to the appellant. See
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (explaining
that an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
April 2020 EPA Lead Auditor
¶35With respect to the appellant’s nonselection for the EPA Lead Auditor
position in April 2020, she appears to argue on review that the administrative
judge erred by finding that her claim that an agency employee who later became
employed by the EPA may have influenced her nonselection for this position was
“wholly speculative” and so she failed to establish that her protected disclosure
was a contributing factor in her nonselection for this position. 0039 PFR File,
Tab 5 at 22-23. Specifically, the appellant testified that during her interview for
the EPA Lead Auditor position, the interviewing official asked her questions
about actual or potential equal employment opportunity (EEO) complaints against
her, and at the time the appellant was engaged in EEO mediation against her
employing agency, which raised her suspicion that someone may have alerted the19
interviewing official to her ongoing EEO activity. 0039 HR 4 at 10:50-11:59
(testimony of the appellant). She testified that her suspicion was further elevated
when she later found out that a former agency official later became employed by
EPA. Id. at 12:00-12:35 (testimony of the appellant).
¶36Addressing the appellant’s testimony on this point in the initial decision, the
administrative judge noted that the appellant had not requested any witnesses
from EPA to testify at the hearing and that the former agency official who later
joined EPA denied communicating with anyone at EPA about the appellant. 0039
ID at 14-15. The administrative judge further observed the fact that the former
agency official who later joined EPA did not first interview with that agency until
June 2020 and was not hired until September 2020—the earlier date being more
than 2 months after EPA failed to select the appellant for the Lead Auditor
position. ID at 15. Consequently, he determined that the appellant failed to
prove by preponderant evidence that her protected disclosure concerning the
agency’s purported noncompliance with GAGAS was a contributing factor in her
nonselection for this position. 0039 ID at 15.
¶37Regarding other potential evidence for proving contributing factor, the only
documentary evidence the appellant provided regarding this position was a copy
of a LinkedIn profile page for the eventual selectee for the position as well as a
“Candidate Comparison” spreadsheet she created comparing her credentials to
those of the selectee. 0039 IAF, Tab 1 at 13; 0039-W-4 AF, Tab 13 at 55-56. As
the administrative judge correctly observed, the appellant failed to produce
witness testimony or any other documentary evidence from a selecting official at
EPA for this position or even to identify the EPA selecting official for this
position, and so there is no evidence in the record pertaining to the potential
strength or weakness of EPA’s nonselection decision. 0039 ID at 15; see Dorney,
117 M.S.P.R. 480, ¶ 15. The appellant also has not alleged that her
whistleblowing activity was personally directed at either the EPA selecting
official for this position or at the agency official who later joined EPA, or that20
either official had any desire or motive to retaliate against her. Consequently, we
agree with the administrative judge’s finding that the appellant failed to prove
that her whistleblowing disclosure was a contributing factor in this nonselection
decision.
March 2019 IQO detail
¶38Finally, regarding her nonselection for the March 2019 IQO detail position,
the appellant appears to argue that the administrative judge improperly weighed
the Carr factors in finding that the agency proved by clear and convincing
evidence that it would not have selected the appellant for this detail appointment
absent her whistleblowing activity. 0039 PFR File, Tab 5 at 25-29. Specifically,
the appellant argues that the agency’s stated reasons for failing to select her for
the March 2019 IQO detail are weak, and so the administrative judge erred by
finding that this factor weighed in the agency’s favor. Id. at 25. To support her
argument, the appellant points to her positive performance ratings and alleges
that the agency’s stated reasons for choosing the selectee for the detail, including
the fact that the selectee could be more readily assigned with minimal disruption,
were “incredulous,” highlighting testimony from her former first-line supervisor
noting that the appellant was a good fit for the detail and that she could have
naturally transitioned to the position. Id. She also highlights the fact that her
second-line supervisor who was aware of her whistleblowing activity was
involved in the selection decision and appears to suggest that the supervisor may
have influenced her nonselection. Id.
¶39The administrative judge specifically addressed the appellant’s argument
challenging the agency’s stated reasons for choosing the selectee, crediting the
documentary evidence from the selecting official noting that the selectee was
chosen, in part, due to the minimal disruption her reassignment would cause, as
well as the testimony from two other agency officials stating that the selectee had
more relevant experience than the appellant. 0039 ID at 16; 0039-W-4 AF,
Tab 13 at 27; 0039 HR 1 at 27:50-31:50 (testimony from a former Deputy AIG21
for Audits) (acknowledging that the former AIG was the selecting official for this
detail and that the selectee had previously worked in the IQO office and was the
“best suited” for that position).
¶40The administrative judge also addressed the appellant’s argument that the
selecting official for the March 2019 IQO detail had constructive knowledge of
the appellant’s whistleblowing activity in analyzing the second Carr factor. 0039
ID at 16-17. Specifically, the administrative judge acknowledged the appellant’s
argument that her second-line supervisor who had actual knowledge of the
whistleblowing activity may have influenced the selecting official. 0039 ID
at 16-17. He nevertheless appropriately concluded that there was no evidence
that the second-line supervisor exerted any influence on the selecting official,
noting that there was no testimonial or documentary evidence showing that the
supervisor influenced the AGI’s nonselection decision. 0039 ID at 17 (citing
Staub v. Proctor Hospital , 562 U.S. 411 (2011)).
¶41The administrative judge further determined that there was no evidence of
an institutional or professional retaliatory motive because knowledge of the
appellant’s disclosure within the agency was very limited, there was no evidence
that the appellant’s GAGAS disclosure broadly implicated management officials
or employees in general, and the management officials credibly testified that the
impact and import of the appellant’s disclosure was minimal. 0039 ID at 17-18
(citing Soto, 2022 MSPB 6, ¶ 14); 0039 HR 3 at 46:30 (testimony of the
appellant’s second-line supervisor acknowledging that she received an email from
the appellant regarding her whistleblowing disclosure but that the email “meant
nothing to [her]” when she received it); see Miller, 842 F.3d at 1261-62. Aside
from generally reasserting that her whistleblowing disclosure could have
reflected poorly on her second-line supervisor and the agency at large, the
appellant has not provided any additional evidence of potential retaliatory motive
by any agency official, and we find no reason to disturb the administrative
judge’s findings regarding the second Carr factor. 22
¶42Finally, the appellant argues on review that the administrative judge erred
by finding that there were not any valid comparators in analyzing the third Carr
factor and identifies two selectees that she argues were properly offered as
comparators. 0039 PFR File, Tab 5 at 28-29; 0039 ID at 18-19. One of the
individuals was selected for the QMT Director position in March 2020, and the
other individual was selected for a position as Audit Director of the Infrastructure
Protection and Disaster Management Division (formerly known as the Disaster
Management and Infrastructure Protection division). 0039 IAF Tab 6 at 9;
0039-W-4 AF, Tab 13 at 38-39. There is no evidence in the record that either
individual applied to or was selected for the March 2019 IQO detail, and so the
appellant has failed to prove that they were treated more favorably than she was
for the purpose of analyzing the third Carr factor in the context of the appellant’s
nonselection for the March 2019 IQO detail position.
¶43In sum, we agree with the administrative judge’s finding that the appellant
failed to meet her burden of proving that her protected disclosure was a
contributing factor in her nonselection for the August 2018 IQO detail, the
February 2020 QMT Director position, the January 2019 DCAA Supervisory
Auditor position, and the April 2020 EPA Lead Auditor position. We further
agree with his finding that the agency proved by clear and convincing evidence
that it would not have selected the appellant for the March 2019 IQO detail even
in the absence of her protected whistleblowing activity. Consequently, we affirm
the administrative judge’s finding that the appellant is not entitled to corrective
action in the 0039 appeal.
¶44For the foregoing reasons, we deny the petitions for review and affirm the
initial decisions in these joined appeals, as modified herein.23
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.24
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any25
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s26
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 27
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.28 | Mouton-Miller_Deborah_N_AT-1221-19-0742-W-4__AT-1221-21-0039-W-4Final Order.pdf | 2024-09-11 | null | AT-1221-19-0742-W-1 | NP |
526 | https://www.mspb.gov/decisions/nonprecedential/Livingston_SolomonNY-0731-21-0078-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SOLOMON LIVINGSTON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-0731-21-0078-I-1
DATE: September 11, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Solomon Livingston , Buffalo Grove, Illinois, pro se.
Katharine Lavin , Buffalo, New York, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of the agency’s decision to rescind its
tentative offer of employment. On petition for review, the appellant does not
make any specific allegation of error in the administrative judge’s findings, 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).
instead generally states that “any and all facts decided against” him were
incorrectly decided, asks that “Federal and state law” that applies to him be
correctly applied, and requests that the Board order the agency to provide a start
date for him for the rescinded position. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review.2 Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
2 Although not raised by the parties on review, it appears that the administrative judge
issued the initial decision before the record on jurisdiction closed. However, the
appellant was not adversely affected by the shortened deadline because the
administrative judge only shortened the agency’s response period. See Karapinka v.
Department of Energy , 6 M.S.P.R. 124, 127 (1981) (the administrative judge’s
procedural error is of no legal consequence unless it is shown to have adversely affected
a party’s substantive rights).
Additionally, we note that the administrative judge mistakenly cited 5 C.F.R.
§ 1201.56(a)(2)(i), rather than 5 C.F.R. § 1201.56(b)(2)(i), for the proposition that the
appellant bears the burden of establishing Board jurisdiction over his appeal. Initial
Appeal File, Tab 4 at 2, Tab 7 at 2. That error also did not adversely affect the
appellant because the administrative judge applied the correct legal standard.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Livingston_SolomonNY-0731-21-0078-I-1_Final_Order.pdf | 2024-09-11 | SOLOMON LIVINGSTON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-0731-21-0078-I-1, September 11, 2024 | NY-0731-21-0078-I-1 | NP |
527 | https://www.mspb.gov/decisions/nonprecedential/Henderson_JanelleDC-0432-20-0615-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANELLE HENDERSON,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-0432-20-0615-I-1
DATE: September 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
Janelle Henderson , Glenarden, Maryland, pro se.
Dana L. Vockley , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action demoting her for unacceptable performance pursuant
to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition
for review, VACATE the initial decision, and REMAND the appeal to the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
regional office for further adjudication consistent with the U.S. Court of Appeals
for the Federal Circuit’s decision in Santos v. National Aeronautics and Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
Effective April 15, 2019, the agency placed the appellant, a GS -14
Intelligence Research Specialist, on a 60-day performance improvement plan
(PIP), explaining that she had failed to meet a critical performance goal of her
position, specifically, Production and Quality Control. Initial Appeal File (IAF),
Tab 5 at 50-51, 60-65, 144. On August 23, 2019, following the conclusion of the
PIP, the agency informed the appellant that she had improved to an acceptable
level; however, it explained that, if she did not continue to meet the subject
performance goal for 1 year following the commencement of the PIP, it would
initiate an adverse action against her without providing her an additional
opportunity to demonstrate acceptable performance. Id. at 85-86.
Thereafter, on February 12, 2020, the agency proposed to demote the
appellant to a GS-13 Intelligence Research Specialist position for failure to
perform acceptably in Production and Quality Control. Id. at 38-42. On
February 21, 2020, the appellant provided a written response to the agency’s
proposed action. Id. at 26-27. In her response, the appellant argued that her
placement on the PIP was the result of discrimination on the basis of sex and
race, as well as retaliation for prior protected equal employment opportunity
(EEO) activity. Id. at 26. The appellant explained that she had filed three prior
EEO complaints, the most recent of which related to her placement on the PIP.
Id. Thereafter, effective April 26, 2020, the agency demoted the appellant.
Id. at 20-25.
The appellant appealed her demotion to the Board; however, she did not
request a hearing on the matter. IAF, Tab 1 at 2. On appeal, the appellant raised2
the following affirmative defenses: (1) race discrimination; (2) sex
discrimination; and (3) retaliation for prior protected EEO activity. Id. at 5.
Based on the written record, the administrative judge issued an initial
decision affirming the agency’s demotion action. IAF, Tab 14, Initial Decision
(ID) at 1, 12-13. In so doing, the administrative judge found that the agency had
shown, by substantial evidence,2 the following: (1) the Office of Personnel
Management (OPM) had approved the agency’s performance appraisal system;
(2) the agency had communicated to the appellant the performance standards and
critical elements of her position, found her performance unacceptable in one or
more critical elements, and warned her of her performance inadequacies; and
(3) the agency had given the appellant a reasonable opportunity to improve, but
she had failed to do so. ID at 4-10. The administrative judge also concluded that
the appellant did not prove any of her proffered affirmative defenses by
preponderant evidence. ID at 10-12.
The appellant has filed a petition for review, and the agency has filed a
response. Petition for Review (PFR) File, Tabs 1, 3. In her petition for review,
the appellant asserts that the administrative judge failed to consider the entirety
of her career at the agency. PFR File, Tab 1 at 5. She also contends that her
placement on the PIP was the result of discriminatory and retaliatory animus.3 Id.
at 4-5.
2 Substantial evidence is “[t]he degree of relevant evidence that a reasonable person,
considering the record as a whole, might accept as adequate to support a conclusion,
even though other reasonable persons might disagree. This is a lower standard of proof
than preponderance of the evidence.” 5 C.F.R. § 1201.4(p).
3 In her petition for review, the appellant explains that she would like to submit to the
Board additional documents regarding two of her prior EEO complaints, PFR File,
Tab 1 at 4, and, with its response, the agency submits additional documents regarding
one of the appellant’s EEO complaints, PFR File, Tab 3 at 11-13. The Board generally
will not consider evidence submitted for the first time with the petition for review
absent a showing that it was unavailable before the record was closed despite the
party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980);
5 C.F.R. § 1201.115(d). Given our findings herein, however, we need not address either
the appellant’s request or the agency’s additional documents.3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s contention regarding her tenure at the agency does not warrant a
different outcome.
The appellant asserts that the administrative judge failed to properly
consider her tenure with the agency “as a whole.” Id. at 5. Specifically, she
avers that she received satisfactory performance ratings from 2013 through 2018,
and, therefore, that her demotion was unwarranted. Id. We disagree. Indeed, an
agency is not estopped by a prior satisfactory appraisal from taking a
performance-based action against an appellant. Lee v. Department of Labor ,
110 M.S.P.R. 355, ¶ 11 (2008). Thus, the appellant’s assertion is unavailing.
We remand the appeal in light of Santos .
The appellant contends that her placement on the PIP was unjustified. PFR
File, Tab 1 at 4-5. Specifically, she avers that she had not “failed any [valid]
standard or goal” prior to April 2019, when she was placed on the PIP. Id. at 5.
She seemingly argues that the agency’s initiation of the PIP was therefore the
result of race/sex discrimination and retaliation for her prior EEO activity. Id.
at 4-5. She also contends that the administrative judge should have postponed his
issuance of the initial decision because her EEO claims were unresolved. Id. at 4.
At the time the initial decision was issued, the Board’s case law stated that,
in an appeal of a performance-based removal under chapter 43, the agency must
establish the following by substantial evidence: (1) OPM approved its
performance appraisal system and any significant changes thereto; (2) the agency
communicated to the appellant the performance standards and critical elements of
her position; (3) the appellant’s performance standards were valid under 5 U.S.C.
§ 4302(c)(1);4 (4) the agency warned the appellant of the inadequacies of her
performance during the appraisal period and gave her a reasonable opportunity to
demonstrate acceptable performance; and (5) the appellant’s performance
4 The criteria set forth in 5 U.S.C. § 4302(c)(1) formerly appeared at 5 U.S.C. § 4302(b)
(1) prior to the enactment of the National Defense Authorization Act for Fiscal Year
2018, Pub. L. No. 115-91, Div. A, tit. X, § 1097(d)(1), 131 Stat. 1283, 1619 (2017).4
remained unacceptable in one or more of the critical elements for which she was
provided an opportunity to demonstrate acceptable performance. Lee v.
Environmental Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010).5
In affirming the agency’s performance-based action, the administrative
judge correctly applied the above-enumerated standard. ID at 4-10. In so doing,
he explained that the appellant’s placement on the PIP was not a matter
appealable to the Board. ID at 9 (citing Shaishaa v. Department of the Army ,
58 M.S.P.R. 450, 454 (1992)). Similarly, in finding unavailing the appellant’s
assertions that the agency had discriminated and retaliated against her, the
administrative judge reasoned that the appellant’s arguments concerned “the issue
of whether the agency discriminated and retaliated against [her] when it placed
her on a PIP, and not the actual decision to demote her,” and, therefore, were not
within the Board’s jurisdiction. ID at 12.
During the pendency of the petition for review in this case, the Federal
Circuit held in Santos, 990 F.3d at 1360-61, that in addition to the five elements
of the agency’s case set forth above, the agency must also justify the institution
of a PIP by proving by substantial evidence that the appellant’s performance was
unacceptable prior to the PIP. The Federal Circuit’s decision in Santos applies to
all pending cases, including this one, regardless of when the events took place.
Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16. We therefore
remand this case for further adjudication of the appellant’s removal under the
standard set forth in Santos. See id. (remanding the appellant’s chapter 43 appeal
because the parties did not have an opportunity to address the modified standard
set forth in Santos).
5 We recognize that the administrative judge described the agency’s burden somewhat
differently. ID at 3. However, the requirements remained the same under the
administrative judge’s description and ours. We are simply using the description found
in more recent Board decisions that predate Santos. See, e.g., White v. Department of
Veterans Affairs, 120 M.S.P.R. 405, ¶ 5 (2013); Lee, 115 M.S.P.R. 533, ¶ 5. 5
On remand, the administrative judge shall accept evidence and argument
from both parties regarding whether the agency proved by substantial evidence
that the appellant’s pre-PIP performance was unacceptable. The administrative
judge shall hold a supplemental hearing if appropriate. The administrative judge
shall then issue a new initial decision consistent with Santos. If the agency
makes the additional showing required under Santos on remand, the
administrative judge may incorporate his prior findings on other elements of the
agency’s case in the remand initial decision. However, regardless of whether the
agency meets its burden, if the argument or evidence on remand regarding the
appellant’s pre-PIP performance affects the analyses of the appellant’s
affirmative defenses, the administrative judge should address such argument or
evidence in the remand initial decision. See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must
identify all material issues of fact and law, summarize the evidence, resolve
issues of credibility, and include the administrative judge’s conclusions of law
and his legal reasoning, as well as the authorities on which that reasoning rests). 6
ORDER
For the reasons discussed above, we grant the appellant’s petition for
review, vacate the initial decision, and remand this case to the regional office for
further adjudication consistent with Santos.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Henderson_JanelleDC-0432-20-0615-I-1_Remand_Order.pdf | 2024-09-10 | JANELLE HENDERSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-0432-20-0615-I-1, September 10, 2024 | DC-0432-20-0615-I-1 | NP |
528 | https://www.mspb.gov/decisions/nonprecedential/Jimenez_JosephAT-0752-20-0466-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH JIMENEZ,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
AT-0752-20-0466-I-1
DATE: September 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph Jimenez , Orlando, Florida, pro se.
Jeanelle L. Graham , Esquire, Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a Medical Officer at a Federal Correctional Institution in
Tallahassee, Florida. Initial Appeal File (IAF), Tab 1 at 1. On April 16, 2020,
there was an incident between the appellant and his subordinate staff at the
facility involving how to care for a patient exhibiting symptoms of COVID-19.
Id. at 5. After meeting with the facility’s Warden to discuss the matter, id., the
appellant tendered his letter of resignation,2 IAF, Tab 4 at 15. The appellant’s
resignation letter stated both that it would be “effective immediately” and that his
“last day of employment” would be “April 30, 2020.” Id. Following the
submission of his resignation letter, the appellant went to the human resources
(HR) department to complete the necessary paperwork, and he returned any
agency-owned items in his possession. IAF, Tab 19 at 6. After relinquishing his
identification card and credentials, the appellant left the facility. Id. He
subsequently filed a Board appeal on April 27, 2020, alleging that his resignation
was involuntary. IAF, Tab 1 at 5.
2 Although the letter of resignation was dated April 1, 2020, the parties do not dispute
that it was sent and received on April 16, 2020. IAF, Tab 4 at 5, Tab 5 at 4.2
The administrative judge found that the appellant made nonfrivolous
allegations of jurisdiction. IAF, Tab 14 at 1. Because the appellant did not
request a hearing, IAF, Tab 1 at 2, the administrative judge decided the matter on
the written record, IAF, Tab 24, Initial Decision (ID) at 1. The administrative
judge found that (1) the appellant resigned, effective April 16, 2020, and he did
not rescind his resignation prior to the effective date, and (2) the appellant failed
to prove by preponderant evidence3 that his resignation was involuntary. ID
at 1-14.
The appellant has filed a petition for review and a supplemental petition,
and the agency has responded. Petition for Review (PFR) File, Tabs 1-2, 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the agency acted properly in
processing the appellant’s resignation effective immediately.
The Board has recognized that the effective date of a resignation is a
decision reserved for the employee. Aurandt v. Department of the Air Force ,
53 M.S.P.R. 591, 596 (1992); 5 C.F.R. § 715.202(a). However, when there is a
question as to the timing of a resignation, the Board looks at an employee’s
statements and actions, and if they are consistent with an intent to resign
immediately, the agency is entitled to process the resignation immediately.
Heinze v. Department of the Interior , 47 M.S.P.R. 375, 378, aff’d, 949 F.2d 403
(Fed. Cir. 1991) (Table). When, as here, no hearing was held and the
administrative judge’s findings were based solely on the written record, the Board
will give those findings only the weight warranted by the record and the strength
of his conclusions. Donato v. Department of Defense , 34 M.S.P.R. 385, 389
(1987). However, the Board will not reconsider an administrative judge’s factual
findings simply based on an allegation that he failed to give sufficient weight to
3 Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).3
one party’s evidence or gave too much weight to the other party’s evidence. Id.
at 389-90.
The appellant’s letter of resignation stated that he was resigning “effective
immediately.” IAF, Tab 4 at 15. In tendering his resignation, he expressed
concern with his ability to work as a medical officer in a safe and effective
manner given the COVID-19 pandemic. Id. The appellant also stated in his
resignation letter that his last date of employment would be April 30, 2020. Id.
Thus, on its face, the appellant’s resignation letter was internally inconsistent.
The administrative judge found that the agency was within its rights to
process the appellant’s resignation effective immediately on April 16, 2020,
because the totality of the circumstances indicated that the appellant intended to
resign “effective immediately” on the date that he submitted the letter. ID at 5-9.
For example, the administrative judge noted that the appellant complied with the
agency’s instructions to visit the HR department to complete paperwork and other
tasks to effect his resignation, including returning agency property, identification
cards, and credentials, and he signed an SF-52 stating that his resignation was
effective that same day.4 ID at 7-8. Additionally, in reaching this conclusion, the
administrative judge made credibility findings that were consistent with the
factors set forth in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987). ID at 7-8. Specifically, the administrative judge credited the
declarations, made under penalty of perjury, of four agency employees who
4 There was a dispute as to whether the hand-written effective date “4/16/20” on the
SF-52 next to the appellant’s signature was inserted by the appellant or was added after
he had signed it. IAF, Tab 4 at 19-20. The administrative judge determined that it was
unnecessary to resolve this discrepancy in light of other record evidence. ID at 3 n.2.
However, there was also a typed proposed effective date of “4/16/20” on the same form,
and the administrative judge noted that this entry was made by an agency employee
before the appellant signed it. ID at 3, 8; IAF, Tab 4 at 19, Tab 21 at 15. Although
unclear, the appellant may be challenging the administrative judge’s statement
regarding the proposed typed effective date on review. See PFR File, Tab 2 at 6
(arguing that the “dates” in the SF-52 “were filled in by the HR department after [he]
had been escorted out of [the] premises”). However, this argument is not persuasive
because the record supports the administrative judge’s findings in this regard. 4
interacted with the appellant on the same day that he tendered his resignation,
that at no point in time during the resignation process did the appellant express
his intent to have the effective date be different than that day, April 16, 2020, or
otherwise attempt to rescind his resignation or stop the process. Id.; IAF, Tab 21
at 14-16, 29-32, 44-45, 47-49. In making these credibility determinations, the
administrative judge took into consideration that these individuals were directly
involved in the relevant events, the statements were consistent with one another
and with other evidence in the record, the statements were not inherently
improbable, and there were no apparent character or bias issues that would affect
credibility. ID at 7-8.
Although unclear, the appellant appears to be arguing on review that he did
not have “access, time or opportunity to speak [with] or see any of these
individuals.” PFR File, Tab 1 at 7. However, this assertion is belied by the next
sentence in his petition wherein he appears to admit that a video tape record of
the facility would confirm that he was with at least two of these individuals on
the date in question. Id. We find that the appellant has failed to identify any
specific evidence that demonstrates error in the administrative judge’s findings,
and his assertions amount to nothing more than a disagreement with the
administrative judge’s conclusions. Accordingly, we find no basis to disturb the
administrative judge’s findings and credibility determinations, which are
supported by the record as explained in the initial decision. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when he considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions).
Indeed, all of the necessary steps to effectuate the appellant’s resignation
were completed in his presence and without any apparent objection on April 16,
2020. Accordingly, we find that the appellant’s actions and conduct on that date
resolved any internal inconsistency in his resignation letter and evidenced an5
intent to resign immediately.5 See Heinze, 47 M.S.P.R. at 378 (finding that the
appellant intended to resign immediately when he stated that he was resigning
“right now,” turned in his keys, collected his belongings, and left the building).
We have considered the appellant’s remaining arguments, but none are
persuasive.
The administrative judge correctly found that the appellant failed to establish that
his resignation was involuntary.
An employee-initiated action, such as a resignation, is presumed to be
voluntary, and thus, outside the Board’s jurisdiction. Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). Among the ways that an employee
can establish involuntariness is by proving that the agency obtained the action
through duress or coercion. Id. The touchstone of a voluntariness analysis is
whether, considering the totality of the circumstances, factors operated on the
employee’s decision-making process that deprived him of freedom of choice. Id.
Intolerable working conditions may render an action involuntary if the employee
demonstrates that the employer or agency engaged in a course of action that made
working conditions so difficult or unpleasant that a reasonable person in that
employee’s position would have felt compelled to resign. Id. Moreover, an
appellant may demonstrate that his resignation was involuntary where the agency
made misleading statements upon which he reasonably relied to his detriment.
Aldridge v. Department of Agriculture , 111 M.S.P.R. 670, ¶ 8 (2009). Although
various fact patterns may give rise to an appealable involuntary resignation, all
constructive adverse action claims have the following two elements in common:
(1) the employee lacked a meaningful choice in the matter; and (2) it was the
5 The HR manager declared under penalty of perjury that the appellant asked about
severance pay for the period of April 17 through April 30, 2020, and she informed him
that the agency did not issue severance checks, but that he would receive a check for
any leave balances. IAF, Tab 21 at 30. Even with the information that he would not
receive payment through April 30, 2020, the appellant nonetheless continued with the
resignation process without any apparent objection. 6
agency’s wrongful actions that deprived the employee of that choice. Bean v.
U.S. Postal Service , 120 M.S.P.R. 397, ¶ 8 (2013).
The administrative judge found that the appellant failed to prove that his
resignation was involuntary. ID at 9-14. In pertinent part, he found that the
appellant failed to prove by preponderant evidence that he had no realistic
alternative to resignation or that his resignation was the result of any improper
agency action, including retaliation for an Office of Special Counsel complaint or
prior Board appeal. Id. Rather, the administrative judge found that the totality of
circumstances indicated that the appellant made “a hasty and impulsive decision
to resign” following an April 16, 2020 disagreement concerning a patient and
later regretted his decision. ID at 13.
The appellant argues that the administrative judge failed to credit his
testimony that he did not willingly report to HR on April 16, 2020, but rather,
was instructed to do so by the Assistant Warden. PFR File, Tab 2 at 6. Even
taking the appellant’s assertion as true, he has not explained how this was an
improper act by the agency. See Bean, 120 M.S.P.R. 397, ¶ 8 (finding that an
appellant must show the agency’s wrongful actions led to his resignation).
Because we have found that the agency properly processed his resignation
effective immediately on April 16, 2020, there was nothing improper about
requesting that he proceed to HR to complete the requisite paperwork.
Additionally, as the administrative judge found, the escort by the Assistant
Warden was to obtain the agency-owned stab -resistant vest that the appellant had
in his vehicle, which was an appropriate action under the circumstances since he
was no longer an agency employee. ID at 3; IAF, Tab 21 at 30, 44. His
assertions that the agency took these actions against his will and without previous
notification, PFR File, Tab 2 at 7, are unpersuasive. Indeed, the appellant
initiated this process himself by submitting the letter of resignation. IAF, Tab 4
at 15. As credited by the administrative judge, the appellant never expressed
reservation or a desire to stop the process. ID at 3, 7. Indeed, the administrative7
judge found that the appellant “full[y] cooperat[ed]” with the agency’s imminent
processing of his resignation on April 16, 2020. ID at 7. Moreover, 2 days later,
on April 18, 2020, the appellant emailed the Warden thanking her for her
leadership and complaining about actions of a member of the medical staff, but
not asserting that he felt forced to resign or expressing any reservation about his
resignation. IAF, Tab 21 at 55. As such, we find that the appellant has failed to
identify any improper actions by the agency in this regard which would render his
resignation involuntary.
The appellant asserts that the agency retaliated against him for filing a
complaint with the Office of Special Counsel and filing a prior Board appeal.
PFR File, Tab 2 at 7. This argument does not warrant a different outcome. The
Board may consider an appellant’s claims of retaliation in an involuntary
resignation appeal for the limited purposed of determining whether such claims
support the appellant’s allegation of coercion. Hernandez v. U.S. Postal Service ,
74 M.S.P.R. 412, 416 (1997). The administrative judge held that the appellant
failed to identify any specifics about his complaint or Board appeal, any
individuals identified therein, knowledge on the part of any agency officials
involved in his resignation, or a motive to retaliate. ID at 12-13. Thus, even
considering the retaliation allegation together with the other evidence, the
administrative judge found that the appellant’s allegations failed to support a
conclusion that his resignation was involuntary. ID at 13. The appellant on
review argues that the administrative judge failed to consider material facts
related to this allegation. PFR File, Tab 2 at 7. However, he does not identify
what other facts or information the administrative judge failed to consider.
Moreover, an administrative judge’s failure to mention all of the evidence of
record does not mean that he did not consider it in reaching his decision.
Marques v. Department of Health & Human Services , 22 M.S.P.R. 129, 132
(1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Additionally, the appellant
had the option to stay and fight any alleged retaliation rather than resign. See8
Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605, ¶ 17 (2009) (finding
that the fact that an appellant could have challenged the alleged retaliation
weighed against a finding that his resignation was involuntary).
To the extent the appellant argues that the agency retaliated against him by
not promoting him and denying incentive bonuses and other monetary
compensation, PFR File, Tab 2 at 7-8, we are similarly unpersuaded. It does not
appear that the appellant raised these arguments below. The Board will not
generally consider an argument raised for the first time in a petition for review
absent a showing that it is based on new and material evidence not previously
available despite the party’s due diligence. Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980). Even if we were to consider this argument,
the appellant has not explained how these actions would have compelled a
reasonable person to resign.
Likewise, we are not persuaded by the appellant’s contention that his
resignation was obtained by agency misinformation or deception. PFR File,
Tab 2 at 7. Here, too, it is not clear that the appellant raised this argument before
the administrative judge. See Banks, 4 M.S.P.R. at 271. Even if we considered
this argument, the appellant has failed to identify any information provided by the
agency that was incorrect or was otherwise deceptive. He has not pointed to any
documentation in the record showing that the agency misinformed him or led him
to believe that the effective date of his resignation would be April 30, rather than
April 16. To the extent he inquired about a severance check, the agency advised
him that it does not issue such checks. IAF, Tab 21 at 30. We have considered
the appellant’s remaining arguments, but none warrant a different outcome.
Accordingly, we agree with the administrative judge that the appellant failed to
establish that his resignation was involuntary. 9
The appellant’s remaining arguments on review do not present a basis for
reversal.
The appellant argues that the administrative judge erred in denying his
motion to subpoena video surveillance footage from the agency. PFR File, Tab 1
at 7-8. The administrative judge denied this motion, finding that the appellant did
not initiate discovery or submit a discovery request to the agency requesting such
evidence. IAF, Tab 23 at 1.
The Board will not reverse an administrative judge’s rulings on discovery
matters absent an abuse of discretion. Wagner v. Environmental Protection
Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993)
(Table). The abuse of discretion standard is “a very high standard” and allows for
“great deference.” Pecard v. Department of Agriculture , 115 M.S.P.R. 31, ¶ 15
(2010) (citing Lipscomb v. Department of Defense , 69 M.S.P.R. 484, 487 (1996)).
We find that the administrative judge did not abuse his discretion in
denying the motion. The parties were informed of how to initiate discovery.
IAF, Tab 2 at 3. However, there is no evidence in the record that the appellant
ever initiated or served a discovery request on the agency, despite being advised
previously by the administrative judge of the requirement to do so. See 5 C.F.R.
§ 1201.73(a) (noting that a party seeking discovery must start the process by
serving a request on the representative of the opposing party); IAF, Tab 16 at 1.
The appellant additionally argues that the Board should consider his pro se
status and lack of legal expertise in reviewing his petition for review and the
denial of his motions before the administrative judge. PFR File, Tab 2 at 5. The
appellant was correctly provided with the relevant information of how to initiate
discovery, and he was informed of his need to serve discovery on the agency
before making additional requests with the administrative judge. IAF, Tab 2 at 3,
Tab 16 at 1. He has not demonstrated that the administrative judge abused his
discretion in denying said motions, and the appellant’s bare assertion of his pro se
status is insufficient to warrant a different outcome on review.10
Finally, the appellant appears to allege that the agency violated 42 U.S.C.
§ 1983 by depriving him of his constitutional rights. PFR File, Tab 2 at 6-7. The
Board’s jurisdiction is limited to those matters over which it has been given
jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection
Board, 759 F.2d 9, 10 (Fed. Cir. 1985). It is well settled that the Board has no
jurisdiction to review constitutional claims that are not coupled with an
independently appealable action. Smith v. Department of Defense , 106 M.S.P.R.
228, ¶ 13 (2007). Thus, because we find that the appellant has failed to establish
jurisdiction over his appeal, we similarly lack jurisdiction over his section 1983
claim.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.11
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 you12
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 13
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Jimenez_JosephAT-0752-20-0466-I-1_Final_Order.pdf | 2024-09-10 | JOSEPH JIMENEZ v. DEPARTMENT OF JUSTICE, MSPB Docket No. AT-0752-20-0466-I-1, September 10, 2024 | AT-0752-20-0466-I-1 | NP |
529 | https://www.mspb.gov/decisions/nonprecedential/Roberts_TravisDA-0752-20-0530-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRAVIS ROBERTS,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-20-0530-I-1
DATE: September 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Trey Hopkins , Esquire, Fort Smith, Arkansas, for the appellant.
Daniel L. McFadden , Esquire, Jeffrey Douglas Wood , Esquire, and
Kevin S. Burton , North Little Rock, Arkansas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction on the grounds that he did
not meet the definition of an employee under 5 U.S.C. § 7511(a)(1)(C)(ii).
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
In an effort to meet the statutory definition of an employee in the excepted
service, the appellant, who is not a preference eligible, argues that the
administrative judge erroneously relied on “antiquated” precedent to preclude him
from tacking on over 6 months of temporary service with the agency to
subsequent service in an indefinite appointment. Petition for Review (PFR) File,
Tab 1 at 5-9. Specifically, the appellant cites Youngs v. Department of the Army ,
73 M.S.P.R. 551 (1997), and Martinez v. Department of Homeland Security ,
118 M.S.P.R. 154 (2012), to support the proposition that a non-preference eligible
in the excepted service can count his prior temporary service to meet the 2 year
“current, continuous service” requirement under subsection (C)(ii). PFR File,
Tab 1 at 7-8. However, neither of these cases provides a basis for disturbing the
initial decision. As an initial matter, the Board in Ellefson v. Department of the
Army, 98 M.S.P.R. 191 (2005), recognized that Youngs was overruled by the
decision of the U.S. Court of Appeals for the Federal Circuit in McCormick v.
Department of the Air Force , 307 F.3d 1339 (Fed. Cir. 2002). Nevertheless,
Youngs dealt with an individual in the competitive service and, thus, interprets a2
different statutory provision than the relevant provision in this appeal. Youngs,
73 M.S.P.R. at 557-59. The issue in Martinez, on the other hand, was not
whether a temporary appointment can be tacked onto a subsequent appointment,
but whether the different positions the appellant held with the agency in his two
appointments were the same or similar for purposes of 5 U.S.C. § 7511(a)(1)(C).
Martinez, 118 M.S.P.R. 154, ¶¶ 8-12.
It is well settled that service under temporary appointments is excluded
from the calculation of 2 years of current continuous service under 5 U.S.C.
§ 7511(a)(1)(C)(ii). See, e.g., Forest v. Merit Systems Protection Board , 47 F.3d
409, 411 (Fed. Cir. 1995) (finding that tacking periods of prior service under
temporary appointments to service under a permanent appointment is prohibited
by the plain language of section 7511(a)(1)(C)(ii)); Roy v. Department of Justice ,
115 M.S.P.R. 669, ¶ 7 (2011) (finding that the language of section 7511(a)(1)(C)
(ii) is clear that time spent in a temporary position in the excepted service does
not qualify for tacking to a permanent position), aff’d sub nom. Roy v. Merit
Systems Protection Board , 672 F.3d 1378 (Fed. Cir. 2012). Accordingly, we
discern no reason to disturb the initial decision.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
2 It is undisputed that the appellant was a dual status military technician as defined in
32 U.S.C. § 709. As a dual status technician, the appellant’s Board appeal rights are
limited under 32 U.S.C. § 709(f)(4). Although that issue has not been fully developed
by the parties, in light of our finding that the administrative judge correctly found that
the appellant did not meet the statutory definition of an employee, the Board need not
decide that issue.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible 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 at4
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,5
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the 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. 115-195,6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Roberts_TravisDA-0752-20-0530-I-1_Final_Order.pdf | 2024-09-10 | TRAVIS ROBERTS v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-20-0530-I-1, September 10, 2024 | DA-0752-20-0530-I-1 | NP |
530 | https://www.mspb.gov/decisions/nonprecedential/Harrington_VincentCH-0752-21-0234-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VINCENT HARRINGTON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-21-0234-I-1
DATE: September 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vincent Harrington , Bloomington, Indiana, pro se.
Emily L. Macey , Esquire, Rock Island, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely filed without good cause shown for the delay .
For the reasons discussed below, we GRANT the appellant’s petition for review,
and VACATE the initial decision, but we DISMISS the appeal as barred by res
judicata.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On January 11, 2019, the agency issued a decision removing the appellant
from his position as an Equal Employment Specialist effective January 18, 2019.
Harrington v. Department of the Army , MSPB Docket No. CH-0752-21-0234-I-1,
Initial Appeal File ( 0234 IAF), Tab 6 at 48-53. On January 17, 2019, the
appellant filed a formal discrimination complaint with the agency challenging his
removal, which the agency accepted on February 5, 2019. See Harrington v.
Department of the Army , MSPB Docket No. CH-0752-19-0154-I-1, Initial Appeal
File (0154 IAF), Tab 9 at 8-14. On January 28, 2019, the appellant filed a Board
appeal challenging his removal. 0154 IAF, Tab 1. The agency moved to dismiss
this appeal as premature, 0154 IAF, Tab 12 at 7-9, but in a June 17, 2019 status
conference order, the administrative judge declined to do so, concluding that, at
that point, 120 days had elapsed since the appellant filed his formal EEO
complaint, 0154 IAF, Tab 15 at 1. The administrative judge further noted that,
during the status conference, she asked the appellant’s counsel if he wanted her to
dismiss the appeal without prejudice to refiling for a period of 6 months so that
the appellant could proceed before the Equal Employment Opportunity
Commission (EEOC), but the appellant declined the opportunity to do so.
0154 IAF, Tab 15 at 1. Then, on August 1, 2019, the appellant filed a pleading
requesting to withdraw his Board appeal, and the same day, the administrative
judge issued an initial decision dismissing the appeal as withdrawn. 0154 IAF,
Tabs 20-21. That decision became final on September 5, 2019, when neither
party filed a petition for review of that decision. See 0154 IAF, Tab 21, Initial
Decision (0154 ID) at 2.
On March 19, 2021, the appellant filed the instant appeal seeking again to
challenge his removal. 0234 IAF, Tab 1. The agency moved to dismiss the
appeal as untimely filed, or in the alternative, because the appellant made a prior
election to challenge his removal through the EEO complaint hearing process.
0234 IAF, Tab 6 at 4-8. The administrative judge subsequently issued an order2
noting that the appeal appeared to be untimely filed and ordered the appellant to
file evidence and argument regarding the timeliness of his appeal. 0234 IAF,
Tab 7 at 1-4. The appellant filed a response, in which he made substantive
arguments challenging his removal, and indicated that his appeal was timely filed
because more than 120 days had elapsed since he filed his formal EEO complaint
and the agency had not issued a final agency decision (FAD) on his complaint.
0234 IAF, Tab 9 at 3-4.
Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal as untimely filed. 0234 IAF, Tab 12, Initial
Decision (0234 ID) at 1-7. The administrative judge concluded that the
appellant’s prior appeal was a timely filed Board appeal of his mixed-case
complaint because it was pending before the Board after more than 120 days had
passed since the filing of his formal EEO complaint without a FAD being issued
by the agency. 0234 ID at 1-7. She further concluded that the appellant’s
voluntary decision to withdraw that appeal constituted an act of finality that
removed the appeal from the Board’s jurisdiction, and the subsequent EEOC
decision dated March 1, 2021, did not provide the appellant with additional Board
appeal rights under the agency’s mixed-case complaint procedures. 0234 ID at 7.
Consequently, she concluded that the instant appeal was untimely filed, and
because the appellant had not shown that he acted with due diligence or ordinary
prudence such that he should be entitled to waiver of the filing deadline, she
dismissed the appeal. 0234 ID at 7-8.
The appellant has filed a petition for review of the initial decision, arguing
that his attorney claimed that his prior Board appeal was dismissed without
prejudice to refiling, that his current Board appeal is within the proscribed filing
deadlines, and that his attorney experienced issues using the Board’s e-Appeal
system during the course of the prior Board appeal.2 Petition for Review (PFR)
2 With regard to the appellant’s assertion that his attorney experienced difficulties in
attempting to access e-Appeal, this allegation relates to the prior, dismissed appeal and
not the instant appeal, so we need not consider it here. PFR File, Tab 1 at 3.3
File, Tab 1. The agency has filed a response, and the appellant has not filed a
reply. PFR File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the doctrine of res judicata, a valid final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action. Brown v. Department of the Navy , 102 M.S.P.R. 377,
¶ 10 (citing Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 337 (1995)). Res
judicata precludes parties from relitigating issues that were, or could have been
raised in the prior action, and is applicable if: (1) the prior judgment was
rendered by a forum with competent jurisdiction; (2) the prior judgment was a
final judgment on the merits; and (3) the same cause of action and the same
parties or their privies were involved in both cases. Id.
In this case, the appellant previously filed a Board appeal of the same
adverse action at issue in this case. 0234 ID at 2-3; see 0154 IAF, Tab 1.
Although the appeal was premature when filed, during the processing of the
appeal, 120 days elapsed from the date that the appellant filed his EEO complaint,
vesting his right to appeal his mixed-case complaint. See Miranne v. Department
of the Navy, 121 M.S.P.R. 235, ¶ 9 (2014) (explaining that, if the agency has not
resolved the employee’s discrimination claim or issued its FAD on the
discrimination issue within 120 days, the appellant may file an appeal with the
Board anytime thereafter). Thus, requirements (1) and (3) are satisfied, and the
application of res judicata turns on whether the dismissal of the appellant’s first
appeal was a final judgment on the merits.
The appellant moved to voluntarily withdraw his first appeal, making no
mention of his previously filed discrimination complaint, or giving any indication
that he wished to refile his Board appeal at a later date. 0154 IAF, Tab 20.
Additionally, in dismissing the appeal as withdrawn, the administrative judge
Additionally, the appellant has not provided any evidence to support his claim beyond
his bare assertion.4
assigned to the prior appeal found that the appellant’s withdrawal was an “act of
finality” and had the effect of “removing the appeal from the Board’s
jurisdiction.” 0154 ID at 1. The appellant did not file a petition for review
contesting that determination.
Therefore, we conclude that the dismissal of the appellant’s first appeal
constituted a dismissal with prejudice of his Board appeal of his timely filed
mixed-case complaint. See Brown, 102 M.S.P.R. 377, ¶ 10 (finding that the
dismissal of the appellant’s prior appeal as withdrawn constituted a dismissal of
the appeal with prejudice when the withdrawal was not based on incorrect or
misleading information, and the appellant did not show that he did not
comprehend the implications of his decision). Dismissals with prejudice are
generally considered final, and relitigation of such appeals is barred by res
judicata. Id.; see Cavanagh v. U.S. Postal Service , 44 M.S.P.R. 485, 489 (1990)
(noting that when a party making a request for a voluntary dismissal affirmatively
appears to have intended to abandon the action, the party is barred from bringing
a new action on the same subject matter). Accordingly, we vacate the
administrative judge’s finding dismissing the appeal as untimely filed without
good cause shown for the delay and instead dismiss the appeal as barred by the
doctrine of res judicata.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file7
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Harrington_VincentCH-0752-21-0234-I-1_Final_Order.pdf | 2024-09-10 | VINCENT HARRINGTON v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-21-0234-I-1, September 10, 2024 | CH-0752-21-0234-I-1 | NP |
531 | https://www.mspb.gov/decisions/nonprecedential/Rodgers_Clifton_S_CH-0752-19-0204-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLIFTON S. RODGERS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
CH-0752-19-0204-X-1
DATE: September 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chris S. Searcy , Danville, Kentucky, for the appellant.
Pamela G. Cox and Margaret Walton , Frankfort, Kentucky, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1This proceeding is before the Board based on the administrative judge’s
November 16, 2023 compliance initial decision granting the appellant’s petition
for enforcement and finding that the agency was not in full compliance with the
Board’s June 27, 2023 final decision. For the reasons discussed below, we find
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
that the agency is now in compliance with the Board’s June 27, 2023 final
decision and DISMISS the appellant’s petition for enforcement.
BACKGROUND
The appellant’s removal appeal.
¶2The appellant was employed as a GS-11 Supply Management Specialist and
held that position as a dual status National Guard technician with the Kentucky
National Guard pursuant to 32 U.S.C. § 709. Rodgers v. Department of the Army ,
MSPB Docket No. CH-0752-19-0204-I-1, Initial Appeal File (IAF), Tab 1 at 1;
Rodgers v. Department of the Army , MSPB Docket No. CH-0752-19-0204-C-1,
Compliance File (CF), Tab 1 at 11-12. The agency removed the appellant from
his position, effective February 13, 2019. IAF, Tab 12 at 4; CF, Tab 3 at 11. On
March 26, 2019, the appellant was discharged from the Kentucky National Guard
and assigned to the Retired Reserve. CF, Tab 3 at 12.
¶3The appellant appealed his removal to the Board, and the administrative
judge issued an October 1, 2019 initial decision reversing his removal. IAF,
Tab 64, Initial Decision (ID) at 3-6. The administrative judge ordered the agency
(1) to cancel the appellant’s removal and retroactively restore the appellant,
effective February 13, 2019; and (2) to pay the appellant the correct amount of
back pay, interest, and benefits. ID at 6-7.
¶4Following the agency’s petition for review, the Board issued a
June 27, 2023 Final Order affirming the initial decision. Rodgers v. Department
of the Army, MSPB Docket No. CH-0752-19-0204-I-1, Final Order
(June 27, 2023). The Board ordered the agency (1) to cancel the appellant’s
removal and retroactively restore the appellant, effective February 13, 2019; and
(2) to pay the appellant the correct amount of back pay, interest, and benefits.
Id., ¶¶ 2-3. 2
The appellant’s petition for enforcement.
¶5On July 25, 2023, the appellant filed a petition for enforcement with the
Board, alleging that the agency had not taken any steps to cancel his removal or
process his back pay. CF, Tab 1 at 1. The administrative judge issued a
November 16, 2023 compliance initial decision, finding that the agency was not
in full compliance with the Board’s June 27, 2023 Final Order. CF, Tab 5,
Compliance Initial Decision (CID) at 1-10. She considered the agency’s
argument that it was unable to reinstate the appellant to his dual status position
because he was ineligible for that position based on his failure to maintain
membership in the Kentucky National Guard, but she explained that, in order to
restore the appellant to status quo ante, the agency was still required to cancel the
appellant’s February 13, 2019 removal and place him in a pay status until the
agency undertook a second removal action. CID at 7. She further found that the
appellant was owed back pay, interest, and other benefits from February 13, 2019,
through the date the agency cancelled his removal and placed him back into a pay
status, although the agency was relieved from its obligation to pay the appellant
back pay for the period he was incarcerated in 2019. CID at 9-10.
¶6On December 21, 2023, the appellant filed a petition for review of the
compliance initial decision. Rodgers v. Department of the Army , MSPB Docket
No. CH-0752-19-0204-C-1, Compliance Petition for Review (CPFR) File, Tab 1.
The agency responded in opposition to the petition for review. CPFR File, Tab 3.
The compliance referral matter.
¶7On December 20, 2023, the agency filed a statement of compliance,
asserting that it had cancelled the appellant’s original removal, effective
February 13, 2019, and issued a new notice of removal pursuant to 32 U.S.C.
§ 709(f)(1)(A) for loss of military membership, effective March 26, 2019.
Rodgers v. Department of the Army , MSPB Docket No. CH-0752-19-0204-X-1,
Compliance Referral File (CRF), Tab 1 at 5. The agency also asserts that it was3
unable to complete the back pay requirement because the appellant failed to
provide additional information required by the Defense Financial Accounting
Service (DFAS). Id. at 5-6. In support of its assertions, the agency provides
copies of the appellant’s Standard Form 50s (SF-50s) showing the cancellation of
the original removal and the effectuation of the new removal, its December 6,
2023 notice of removal, its December 6, 2023 email to the appellant requesting
the additional information required by DFAS, including the appellant’s statement
that he was “ready, willing, and able to work” for the period of February 13,
2019, to March 26, 2019, and evidence of any outside earnings, erroneous
payments, retirement withdrawals, and unemployment benefits he received during
that period. Id. at 31-34.
¶8On December 29, 2023, the appellant submitted a declaration stating that,
for the period of February 13, 2019, to March 26, 2019, he had no outside
earnings, he was unable to work, and he did not receive any erroneous payments
or unemployment benefits. CRF, Tab 3 at 4. On January 8, 2024, the appellant
submitted additional documentation for the period of 2020 to 2023. Id. at 7-11.
DISCUSSION OF ARGUMENTS AND EVIDENCE
¶9When the Board finds a personnel action unwarranted or not sustainable, it
orders that the appellant be placed, as nearly as possible, in the situation he would
have been in had the wrongful personnel action not occurred. House v.
Department of the Army , 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the
burden of proving its compliance with a Board order. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011). An agency’s assertions of compliance
must include a clear explanation of its compliance actions supported by
documentary evidence. Id. The appellant may rebut the agency’s evidence of
compliance by making “specific, nonconclusory, and supported assertions of
continued noncompliance.” Brown v. Office of Personnel Management ,
113 M.S.P.R. 325, ¶ 5 (2010).4
¶10The agency’s outstanding compliance obligations were to: (1) cancel the
February 13, 2019 removal and place the appellant in a pay status until it effected
a second removal; and (2) pay the appellant the correct amount of back pay,
interest, and other benefits until it effected a second removal. CID at 7, 9. The
agency has submitted evidence of its attempts to reach full compliance. The
appellant has raised objections to the agency’s efforts to reach compliance with
each requirement, which will be addressed in turn below.
Cancellation of the original removal.
¶11With its statement of compliance, the agency provided evidence of the
actions it had taken on December 6, 2023 to comply with the Board’s decision.
CRF, Tab 1 at 31-34. The agency provided SF-50s cancelling the original
removal, effective February 13, 2019, and effectuating a new removal, effective
March 26, 2019. Id. at 31, 33. The agency also provided a December 6, 2023
notice informing the appellant that it was removing him from his Title 32 dual
status military technician position due to loss of military membership, effective
March 26, 2019. Id. at 32. We find that the agency is now in compliance with
the requirement to cancel the original removal.
Back pay.
¶12The agency bears the initial burden of proving that it has provided an
appellant with the appropriate amount of back pay. King v. Department of the
Navy, 100 M.S.P.R. 116, ¶ 13 (2005), aff’d, 167 F. App’x 191 (Fed. Cir. 2006).
When, however, the agency produces concrete and positive evidence that the
appellant was not ready, willing, and able to work during all or part of the period
during which back pay is claimed, the burden of proof shifts to the appellant to
show his entitlement to back pay. Id. An individual is not entitled to back pay
for any period of time during which he was not ready, willing, and able to report
for duty for reasons unrelated to, or not caused by, the unjustified or unwarranted
personnel action. Id.; 5 C.F.R. § 550.805(c)(2). 5
¶13Here, the agency indicated that it was aware that the appellant was arrested
on January 19, 2019, booked on January 24, 2019, rebooked on August 17, 2019,
and released on September 13, 2019. CF, Tab 3 at 39, 53. The Detailed Release
Report states that the appellant served 86 days, 9 hours, and 38 minutes, but the
exact dates are unknown. Id. at 53. On December 6, 2023, the agency requested
that the appellant provide information required by DFAS to process back pay,
including whether he was ready, willing, and able to work for the period between
the effective dates of his first and second removals (February 13, 2019 to
March 26, 2019). CRF, Tab 1 at 34. The appellant responded with a
December 29, 2023 statement that he was not able to work during that period.
CRF, Tab 3 at 4. He did not, however, specify the reason he was unable to work.
In the absence of evidence to the contrary, we find it reasonable to conclude that
the appellant was not ready, willing, and able to report for duty due to his
incarceration, which was unrelated to the removal action. See Winslow v.
Department of the Navy , 46 M.S.P.R. 246, 250 (1990), aff’d, 935 F.2d 280 (Fed.
Cir. 1991) (Table), overruled on other grounds by Abbott v. U.S. Postal Service ,
121 M.S.P.R. 294 (2014); Marshall v. Government Printing Office , 37 M.S.P.R.
349, 351 (1988). Thus, the agency was not required to provide the appellant back
pay for the period of February 13, 2019, through March 26, 2019.
¶14Accordingly, we find the agency in compliance and dismiss the petition for
enforcement. This is the final decision of the Merit Systems Protection Board in
this compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The6
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be 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.7
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on8
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or9
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Rodgers_Clifton_S_CH-0752-19-0204-X-1_Final_Order.pdf | 2024-09-10 | CLIFTON S. RODGERS v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-0752-19-0204-X-1, September 10, 2024 | CH-0752-19-0204-X-1 | NP |
532 | https://www.mspb.gov/decisions/nonprecedential/Christian_LoriPH-0752-22-0289-I-1__Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORI CHRISTIAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-22-0289-I-1
DATE: September 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aaron D. Wersing , Esquire, and Jacquelyn Trevino , Esquire,
Houston, Texas, for the appellant.
Craig Allen Komorowski , Esquire, Huntington, West Virginia,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for failure to prosecute . For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2On July 28, 2022, the appellant filed a Board appeal alleging that her
June 28, 2022 resignation had been involuntary. Initial Appeal File (IAF), Tab 1
at 4. She requested a hearing on the matter. Id. at 2. On July 29, 2022, the
administrative judge ordered the appellant to file evidence and argument
regarding Board jurisdiction within 15 days. IAF, Tab 2 at 3. Thereafter, on
August 15, 2022, the administrative judge issued a show cause order indicating
that the appellant had failed to respond and cautioning that repeated failures to
follow Board orders could result in a dismissal for failure to prosecute. IAF,
Tab 4 at 1. On this same date, the appellant, through counsel Aaron D. Wersing,
filed a response to both the show cause order and the jurisdictional order,
arguing, among other things, that the jurisdictional response was timely filed.2
IAF, Tab 5 at 4-10.
¶3On November 30, 2022, December 9, 2022, and December 14, 2022, the
administrative judge issued orders scheduling telephonic status conferences;
however, the appellant failed to appear for all three conferences. IAF, Tab 16
at 1; Tab 17 at 1; Tab 18 at 1; Tab 19, Initial Decision (ID) at 2. As a result, on
two additional occasions, the administrative judge cautioned the appellant that
repeated failures to follow Board orders could result in dismissal for failure to
prosecute. IAF, Tab 17 at 1, Tab 18 at 1. On December 20, 2022, without
holding the appellant’s requested hearing, the administrative judge issued an
initial decision dismissing the appeal for failure to prosecute. ID at 1, 3. The
2 Although not material to the outcome of this appeal, we clarify that the appellant was
correct regarding the timeliness of the jurisdictional response; indeed, Board
regulations provide that if, as here, the date that ordinarily would be the last day for
filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the
first workday after that date. 5 C.F.R. § 1201.23.2
initial decision stated that the decision would become final on January 24, 2023,
unless a petition for review was filed by that date. ID at 3.
¶4On March 28, 2023, the appellant filed a petition for review with the Board.
Petition for Review (PFR) File, Tab 1. The petition, which was electronically
filed by Mr. Wersing, id. at 1, 11, provided the following explanation for the
untimeliness of the filing in the online interview section:
From what I can tell, it appears that the MSPB did not receive, or did
not process, the Designation of Representative for Attorney
Jacquelyn Trevino who was Appellant’s representative and whose
designation was mailed to the MSPB. Ms. Trevino and I became
aware of the decision earlier this month when Appellant contacted us
regarding the decision, and immediately began preparing a petition
for review regarding timeliness.
Id. at 3.3
¶5The body of the petition for review, which is signed by Ms. Trevino, id.
at 10, asserted, among other things, that the law firm retained by the appellant
had internally assigned this appeal to Ms. Trevino, id. at 5. The petition stated
that Ms. Trevino had filed a designation of representative form “by mail as the
MSPB Portal does not accept this filing electronically.” Id. It also averred that
Ms. Trevino had been in contact with agency counsel during the pendency of the
appeal before the administrative judge and had worked with agency counsel on
discovery matters. Id. at 5-6. The petition contended that Ms. Trevino was
unaware of the administrative judge’s status conference-related orders, and that
neither the administrative judge nor agency counsel had telephoned her regarding
the same. Id. at 6, 9. With the petition, the appellant’s counsel provided, among
other things, a declaration from Ms. Trevino submitted under penalty of perjury.
Id. at 14-15. In her declaration, Ms. Trevino indicated that she had “researched,
drafted and filed a response on the jurisdiction in this matter on August 18,
3 This section of the petition for review asked the appellant’s counsel whether he
declared, under the penalty of perjury, that the facts asserted regarding the timeliness of
the petition for review were true and correct. PFR File, Tab 1 at 4. Counsel answered
this question in the negative. Id.3
2022,”4 and that she had mailed a copy of her designation of representative form
to the Board on August 30, 2022. Id. at 14-15. Also, attached to the petition for
review was a copy of a designation of representative signed by Ms. Trevino,
dated August 30, 2022, but no certificate of service indicating the method of
service upon the Board or opposing counsel was provided. Id. at 12.
¶6Thereafter, the Office of the Clerk of the Board notified the appellant that
her petition for review was untimely and explained that the Board’s regulations
require that a petition for review that appears to be untimely filed be accompanied
by a motion to accept the filing as timely or to waive the time limit for good
cause. PFR File, Tab 2 at 1-2. The appellant did not submit any additional
filings.
¶7The agency has responded to the appellant’s petition for review, arguing
that it is untimely filed with no good cause shown and that the appellant has not
presented a basis for disturbing the initial decision. PFR File, Tab 3 at 4-11. The
agency contends, among other things, that Ms. Trevino could have registered as
an e-filer but elected not to do so and, in any event, over 4 months passed
between Ms. Trevino’s alleged mailing of the designation of representative form
and the issuance of the initial decision. Id. at 4 n.1. The agency also asserts that
Mr. Wersing never withdrew as the appellant’s designated representative. Id.
at 4 & n.1.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review was untimely filed.
¶8A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that she received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date she
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
4 As indicted above, the appellant’s jurisdictional response was filed on August 15,
2022; however, this document was electronically submitted, and signed, by
Mr. Wersing. IAF, Tab 5 at 1, 10-11. 4
was issued on December 20, 2022, and electronically sent to both the appellant
and her designated representative, Mr. Wersing, the same day. ID at 1; IAF,
Tab 20 at 1.
¶9Here, Mr. Wersing has asserted that he does not know when he received a
copy of the initial decision and that he was unaware that the initial decision had
been issued until the appellant contacted him on an unspecified date in March
2023. PFR File, Tab 1 at 3. However, as a registered e-filer, Mr. Wersing
consented to accept electronic service of pleadings filed by other registered
e-filers and documents issued by the Board. See 5 C.F.R.
§ 1201.14(e)(1) (2022).5 A registered e -filer must, among other things, monitor
case activity in e -Appeal to ensure that he has received all case-related
documents.6 5 C.F.R. § 1201.14(j)(3) (2022). Board documents served
electronically on registered e -filers are deemed received on the date of electronic
submission. 5 C.F.R. § 1201.14(m)(2) (2022). The appellant is therefore deemed
to have received the initial decision on December 20, 2022; accordingly, the
petition for review is untimely by approximately 2 months. PFR File, Tab 1; see
5 C.F.R. § 1201.114(e).
The appellant has not established good cause for the filing delay.
¶10The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for an untimely filing, the appellant must show that she
exercised due diligence or ordinary prudence under the particular circumstances
5 The Board’s regulation regarding electronic filing procedures, 5 C.F.R. § 1201.14,
was amended on October 2, 2023, i.e., while the petition for review was pending before
the Board. These amendments are not material to the outcome of this appeal.
6 In the petition for review, appellant’s counsel concedes that an internal law firm
review revealed that Mr. Wersing had received notices regarding the instant appeal.
PFR File, Tab 1 at 10 n.2; see 5 C.F.R. § 1201.14(j)(1) (2022) (explaining that when the
Board issues documents in a particular appeal, the e-filers for that appeal receive email
messages notifying them of the issuance). Counsel asserts that, because Mr. Wersing
was not internally assigned the case, he “did not go through the internal procedure to
schedule and docket.” PFR File, Tab 1 at 10 n.2.5
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty of misfortune that similarly shows
a causal relationship to her inability to file a timely petition. See Wyeroski v.
Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed.
Cir. 2007).
¶11Here, we do not find good cause for the untimely filing of the appellant’s
petition for review. To this end, the appellant was represented by counsel and the
2-month filing delay is significant. See, e.g., Floyd v. Office of Personnel
Management, 95 M.S.P.R. 260, ¶ 6 (2003) (finding a 1-month delay not minimal).
We have considered all of the arguments presented by the appellant’s counsel on
review; however, we find that none constitute good cause for the filing delay. To
the extent Mr. Wersing no longer intended to represent the appellant before the
Board in this matter, he could have withdrawn as her representative; however, he
did not do so and continued to receive service of pleadings. Indeed, as indicated,
he filed the petition for review in this matter. PFR File, Tab 1 at 1, 11. To the
extent Ms. Trevino intended to become the sole representative for the appellant in
August 2022, she fails to explain why she did not contact the Board until
March 2023, despite not having received service of any Board pleadings.7 Lastly,
7 We have considered appellant’s counsel’s argument that agency counsel should have
performed “his duty of candor” to inform the administrative judge that he had been in
contact with Ms. Trevino or tell appellant’s counsel that the judge was looking for
them. PFR File, Tab 1 at 10 n.3. We have also considered that agency counsel did not
state in his response to the appellant’s petition for review whether he had received
Ms. Trevino’s notice of appearance, PFR File, Tab 3, and thus, we find it more likely
than not that Ms. Trevino served agency counsel with such notice. However, even
assuming that agency counsel did not disclose his contact with Ms. Trevino to the
tribunal and further assuming he had such a duty to do so, the fact remains that
Mr. Wersing remained as counsel, was served, and failed to respond to the
administrative judge’s orders. 6
to the extent counsel argues that an internal case reassignment precipitated the
filing delay, we find counsel’s argument unavailing. See Philpot v. Office of
Personnel Management , 9 M.S.P.R. 554, 555 (1982) (agreeing with the presiding
official’s determination that counsel had not shown good cause for an untimely
filing when counsel alleged that the delay had been precipitated by, among other
things, the attorney who had previously handled the appellant’s case departing
from counsel’s law firm). Simply put, Mr. Wersing’s decision to “not go through
the internal procedure to schedule and docket,” does not constitute good cause
under the circumstances. Thus, we find that the appellant’s counsel did not
exercise due diligence under the circumstances.8
¶12Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the involuntary resignation appeal.
NOTICE OF APPEAL RIGHTS9
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
8 The appellant is responsible for the errors of her chosen representatives. See Reaves
v. Department of Veterans Affairs , 92 M.S.P.R. 352, ¶ 7 (2002); see also Graham v.
Department of the Army , 47 M.S.P.R. 38, 40 (1991) (explaining that an appellant has an
affirmative duty to monitor the progress of an appeal and to ensure that it is timely
filed).
9 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 8
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 9
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.10 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
10 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Christian_LoriPH-0752-22-0289-I-1__Final_Order.pdf | 2024-09-10 | LORI CHRISTIAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-22-0289-I-1, September 10, 2024 | PH-0752-22-0289-I-1 | NP |
533 | https://www.mspb.gov/decisions/nonprecedential/Garton_James_D_DA-0752-21-0406-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES D. GARTON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-21-0406-I-2
DATE: September 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant.
Tijuana D. Griffin , North Little Rock, Arkansas, for the agency.
Johnston B. Walker and LaTasha Clark , Jackson, Mississippi, for the
agency.
Bradley M. Shaughnessy , Esquire, Fayetteville, Arkansas, for the agency.
Brittany Brignac , Oklahoma City, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal from the position of Police Officer. On petition for review,
the appellant argues that the agency erred in revoking his firearm authority after
an Arkansas court found him guilty of domestic violence, and further erred in
removing him for the inability to maintain that condition of employment. He
asserts that additional criminal proceedings that occurred after his removal from
Federal service, which consisted of another Arkansas court’s dismissal of the
criminal charges due to the appellant’s completion of a diversion program, require
his return to duty. The appellant also presents additional arguments about the
matter, such as ones about the constitutionality of the agency’s revocation of his
firearm authority and whether his removal promotes the efficiency of the service.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).2
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Garton_James_D_DA-0752-21-0406-I-2_Final_Order.pdf | 2024-09-10 | JAMES D. GARTON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-21-0406-I-2, September 10, 2024 | DA-0752-21-0406-I-2 | NP |
534 | https://www.mspb.gov/decisions/nonprecedential/Morgan_Rebecca_A_AT-3443-21-0307-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
REBECCA ANN MORGAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-3443-21-0307-I-1
DATE: September 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rebecca Ann Morgan , Oxford, Mississippi, pro se.
Kourtney Collins and Maria Lerma , Houston, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction and untimeliness. Generally, we
grant petitions such as this one only in the following circumstances: the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to vacate the timeliness analysis, we AFFIRM the initial
decision.
On review, the appellant contends that the administrative judge improperly
imposed a requirement that she have prior civilian or military service. We find
that the administrative judge made no error in this regard. Individuals appointed
under 38 U.S.C. § 7401(3) are entitled to the same appeal rights regarding
disciplinary actions as individuals appointed under Title 5. Barrand v.
Department of Veterans Affairs , 112 M.S.P.R. 210, ¶ 9 (2009) (citing Pennington
v. Department of Veterans Affairs , 57 M.S.P.R. 8, 9-10 (1993)). Because the
appellant was a non-preference eligible individual in the excepted service, the
Board has jurisdiction over her appeal under 5 U.S.C. chapter 75 only if she was
an “employee” under 5 U.S.C. § 7511(a)(1)(C). Id., ¶ 13. Section 7511(a)(1)(C)
defines the term “employee” to include a non -preference eligible individual in the
excepted service who “is not serving a probationary or trial period pending
conversion to the competitive service” or “who has completed 2 years of current
continuous service in the same or similar positions in an Executive agency under
than a temporary appointment limited to 2 years or less.” Id. It is undisputed that
the appellant was serving a probationary period at the time of her termination,2
and had no prior Federal service. Initial Appeal File, Tab 8 at 32. Hence, the
administrative judge correctly found that the appellant failed to make a
nonfrivolous allegation that her appeal is within the Board’s chapter 75
jurisdiction.2
The appellant further objects that the Board has not considered her
evidence purportedly showing that the agency violated the Americans with
Disabilities Act. However, absent an otherwise appealable action, the Board
lacks jurisdiction over the appellant’s discrimination claims. See Carlisle v.
Department of Defense , 93 M.S.P.R. 280, ¶ 9 (2003).
Because the Board lacks jurisdiction over this appeal, we do not reach the
issue of its timeliness. See Fletcher v. Office of Personnel Management ,
118 M.S.P.R. 632, ¶ 10 n.2 (2012). Accordingly, we vacate the timeliness
analysis in the initial decision.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
2 We also discern no error in the administrative judge’s finding that the appellant failed
to establish jurisdiction over her appeal under the individual right of action provisions
of 5 U.S.C. § 1221.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
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. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Morgan_Rebecca_A_AT-3443-21-0307-I-1_Final_Order.pdf | 2024-09-10 | REBECCA ANN MORGAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-21-0307-I-1, September 10, 2024 | AT-3443-21-0307-I-1 | NP |
535 | https://www.mspb.gov/decisions/nonprecedential/Arroyo_RobertoDC-831M-24-0234-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERTO ARROYO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-831M-24-0234-I-1
DATE: September 10, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Roberto Arroyo , Concord, North Carolina, pro se.
Eva Ukkola , Angerlia D. Johnson , and Carla Robinson , Washington, D.C.,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his Civil Service Retirement System (CSRS) overpayment appeal for
lack of jurisdiction. On petition for review, the appellant acknowledges that the
Office of Personnel Management (OPM) has rescinded its final decision, ceased
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
collection of the overpayment amount, and refunded the collected funds, but
nevertheless argues that his monthly CSRS annuity amount has still been reduced
since October 2023. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
2 In his petition for review, the appellant alleges that his monthly annuity amount has
been reduced since October 2023 for reasons unrelated to any CSRS overpayment
amount and he references a separate October 26, 2023 OPM initial decision concerning
the offset of his CSRS annuity due to his eligibility for Social Security Administration
benefits. Petition for Review File, Tab 1 at 4-8; Initial Appeal File, Tab 1 at 6-7. To
the extent the appellant wishes to appeal this determination, he may file a new appeal
with the Board naming OPM as the responding agency and providing evidence and
argument that he has received, or effectively received, a reconsideration decision from
OPM on this matter. See Smith v. Office of Personnel Management , 114 M.S.P.R. 395,
¶ 8 (2010) (noting that, generally, the Board has jurisdiction over OPM determinations
affecting an appellant’s rights or interests under CSRS only after OPM has issued a
final or reconsideration decision).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Arroyo_RobertoDC-831M-24-0234-I-1_Final_Order.pdf | 2024-09-10 | ROBERTO ARROYO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831M-24-0234-I-1, September 10, 2024 | DC-831M-24-0234-I-1 | NP |
536 | https://www.mspb.gov/decisions/nonprecedential/Williams_Melissa_A_AT-844E-22-0498-I-2_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELISSA A. WILLIAMS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-22-0498-I-2
DATE: September 10, 2024
THIS ORDER IS NONPRECEDENTIAL1
David Williams , Clearwater, Florida, for the appellant.
Keyanta Dandridge and Sheba Dunnings Banks , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) dismissing the appellant’s application for disability benefits as untimely.
For the reasons discussed below, we GRANT the appellant’s petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
VACATE the initial decision, and REMAND the case to the Atlanta Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The appellant was removed from her position with the U.S. Postal Service
on February 26, 2020. Williams v. Office of Personnel Management , MSPB
Docket No. AT-844E-22-0498-I-1, Initial Appeal File (IAF), Tab 5 at 27, 42. She
submitted an application for disability retirement under the Federal Employees’
Retirement System on or about July 7, 2021, which OPM dismissed as untimely
in both an initial and reconsideration decision because the appellant did not
establish the requisite mental incompetency to waive the 1-year statutory filing
deadline. Id. at 7-8, 14-15, 24 -28. The appellant appealed OPM’s decision to the
Board and requested a hearing, claiming that she initially submitted a timely
disability retirement application in November 2020, within 1 year after her
separation. IAF, Tab 1 at 1, 4-5. She also asserted that she had been
“incapacitated” from work since 2018. Id. at 4-5.
¶3The administrative judge issued a June 9, 2023 order setting a prehearing
conference for August 3, 2023, at 2:00 p.m., and a hearing for August 17, 2023, at
10:00 a.m.2 Williams v. Office of Personnel Management , MSPB Docket
No. AT-844E-22-0498-I-2, Appeal File (I-2 AF), Tab 4 at 1, 3. The order
informed the parties how to participate in the hearing by dialing a toll-free
number and explained that if the appellant failed to appear without good cause,
the appeal would be decided without a hearing. Id. at 1. On August 3, 2023, the
administrative judge issued a summary of the prehearing conference indicating
that neither party had appeared and that the hearing remained scheduled for
August 17, 2023, at 10:00 a.m. I-2 AF, Tab 5 at 1-2. At 10:16 a.m. on
2 In this order and in a subsequent order, the administrative judge indicated that the
times of the scheduled proceedings were Eastern Daylight Savings Time. Williams v.
Office of Personnel Management , MSPB Docket No. AT-844E-22-0498-I-2, Appeal
File, Tab 4 at 1, 3, Tab 5 at 2. 2
August 17, 2023, the appellant had not yet appeared for the hearing, and the
administrative judge declared the record closed. I-2 AF, Tab 8-1 (Hearing
Recording). On August 21, 2023, he issued an initial decision affirming OPM’s
reconsideration decision based on the written record. I-2 AF, Tab 9, Initial
Decision.
¶4The appellant has filed a petition for review3 renewing her arguments that
she submitted a timely disability retirement application in November 2020, and
that she has been mentally incompetent since October 2018. Petition for Review
(PFR) File, Tab 1 at 18-20. She additionally argues that she was not given the
opportunity to “swear under oath” at a hearing. Id. at 18. The agency has not
responded.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5Under 5 U.S.C. § 7701(a)(1), an appellant has a right to a hearing on the
merits in an appeal that is within the Board’s jurisdiction. Jordan v. Office of
Personnel Management , 108 M.S.P.R. 119, ¶ 20 (2008); 5 C.F.R. § 1201.24(d).
This right to a hearing belongs to the appellant, and there are strong policy
considerations in favor of granting an appellant a hearing on the merits. Callahan
v. Department of the Navy , 748 F.2d 1556, 1558-59 (Fed. Cir. 1984); Rossett v.
Office of Personnel Management , 87 M.S.P.R. 415, ¶ 5 (2001). Nevertheless, as
the U.S. Court of Appeals for the Federal Circuit has noted of the right to a
hearing, “if the employee forfeits the right which Congress conferred, he must
forego the benefits.” Callahan, 748 F.2d at 1559. To strike a balance between
these considerations, the Board’s Administrative Judges’ (AJ) Handbook
describes what an administrative judge should do in a circumstance when an
appellant fails to appear at a scheduled hearing:
3 The Office of the Clerk of the Board deemed the appellant’s October 18, 2023 petition
for review of the initial decision timely filed in accordance with the automatic extension
of deadlines during the Board’s transition to the new e-Appeal system. Petition for
Review File, Tab 2 at 1 n.1.3
If the appellant and the appellant’s designated representative (if any)
fail to appear for the scheduled hearing, the hearing cannot proceed.
The AJ should try to call the appellant, and if unsuccessful in making
contact, wait a reasonable time before cancelling the hearing in case
the appellant is merely tardy. If neither the appellant nor the
appellant’s representative appears, the AJ must issue a show cause
order that requires the appellant to show good cause for his or her
absence. The AJ must then follow up with a second order either
rescheduling the hearing if the appellant establishes good cause, or
setting the date for the close of the record if the appellant fails to
respond to the order or if the response fails to show good cause. In
the latter instance, the appeal must be adjudicated on the basis of the
written record only. See Callahan v. Department of the Navy ,
748 F.2d 1556 (Fed. Cir. 1984).
Merit Systems Protection Board, Judges’ Handbook, chapter 4, § 13(a).4
¶6Here, the record does not reflect that the administrative judge attempted to
contact the appellant or wait a reasonable amount of time before canceling the
hearing. The administrative judge also did not issue a show cause order
providing the appellant with an opportunity to demonstrate good cause for her
absence, and he did not reschedule the hearing or issue an order setting a date for
the close of record.
¶7In her petition for review, the appellant asserts that, in previous
proceedings, the administrative judge would inform her by telephone how to
participate, but he did not call her on the day of the hearing with that information.
PFR File, Tab 1 at 18. The administrative judge’s June 9, 2023 order informed
the appellant how to participate in the hearing and notified her that if she failed to
appear without good cause, the appeal would be decided without a hearing. I-2
4 The Board has explained that the AJ Handbook only provides guidance, is not an
independent source of authority for administrative judges, and creates no greater
substantive rights for appellants than that to which they are entitled by law, rule, or
regulation, as developed through the Board’s own current case law and applicable
circuit court decisions. Koehler v. Department of the Air Force , 99 M.S.P.R. 82, ¶ 13
n.4 (2005). However, as noted above, this particular procedure in the AJ Handbook was
adopted to follow the guidance in Callahan, in which the U.S. Court of Appeals for the
Federal Circuit emphasized that an employee’s right to a hearing is strong “and thus
will not be cavalierly or lightly disregarded.” 748 F.2d at 1559. 4
AF, Tab 4. The fact remains, however, that the administrative judge did not wait
a reasonable amount of time, and had he attempted to call the appellant, as she
apparently expected, she could have participated in the requested hearing.
Because an appellant’s right to a hearing should not be taken lightly, and the
administrative judge’s failure to follow the guidance set forth in the Judge’s
Handbook essentially deprived the appellant of that right, we vacate the initial
decision and remand the appeal to the Atlanta Regional Office for the
administrative judge to hold a hearing.
ORDER
¶8For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Williams_Melissa_A_AT-844E-22-0498-I-2_Remand_Order.pdf | 2024-09-10 | MELISSA A. WILLIAMS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-22-0498-I-2, September 10, 2024 | AT-844E-22-0498-I-2 | NP |
537 | https://www.mspb.gov/decisions/nonprecedential/Espirito_TerrySF-0353-20-0227-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRY ESPIRITO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0353-20-0227-I-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Zedie E. Ramage, Jr. , Fresno, California, for the appellant.
Mariana Aguilar , Esquire, Long Beach, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her restoration appeal for lack of jurisdiction. On petition for review,
the appellant argues that the final agency decision (FAD) concerning her
discrimination claim, as it relates to the cancellation of her modified assignment,
informed her that she had a right to appeal to the Board. Petition for Review
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(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 appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the basis for the conclusion that the appellant failed to nonfrivolously
allege Board jurisdiction and the impact of a discrimination claim on a
jurisdictional determination in restoration appeals, we AFFIRM the initial
decision.
In the initial decision, the administrative judge determined that the
appellant failed to nonfrivolously allege jurisdiction over her appeal. Initial
Appeal File (IAF), Tab 10, Initial Decision (ID) at 5-6. In arriving at this
conclusion, she considered only one of the four substantive jurisdictional
elements as set forth in Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 12
(2016).2 ID at 5-6. Specifically, she considered whether the appellant
nonfrivolously alleged that the denial of restoration rights—here, the cancellation
of the modified limited duty assignment—was arbitrary and capricious. ID at 5.
2 Because we ultimately agree with the administrative judge that the appellant failed to
nonfrivolously allege one of the substantive jurisdictional elements required for a
partially recovered employee to establish Board jurisdiction, we need not address the
remaining three elements, nor do we discern any error in the administrative judge’s
decision to not address those elements in the initial decision. 2
Her analysis of this element discussed the appellant’s limited pleadings, the
agency’s explanation for the cancellation of the modified assignment, and its
claim that it performed an extensive job search to try to find the appellant work
within her medical restrictions but that, despite its efforts, it was unable to do so.
Id.; IAF, Tab 1 at 30, Tab 7 at 8. The administrative judge also considered the
appellant’s discrimination claim as an alternative means of alleging that a denial
of restoration rights was arbitrary and capricious, but ultimately concluded that
the appellant failed to nonfrivolously allege that discrimination occurred or that it
evidenced an arbitrary or capricious denial of restoration rights. ID at 5-6; IAF,
Tab 1 at 4. Based on the foregoing, the administrative judge concluded that the
appellant failed to nonfrivolously allege that the cancellation of the modified
assignment was arbitrary and capricious, and that the appellant, therefore, failed
to nonfrivolously allege Board jurisdiction over her claim. ID at 5-6.
After the issuance of the initial decision, the Board issued a decision in
Cronin v. U.S. Postal Service , 2022 MSPB 13, which specifically discussed the
“arbitrary and capricious” element at issue in this appeal. In Cronin, the Board
explained that, in considering this jurisdictional element, the issue before the
Board is limited to whether the agency failed to comply with the minimum
requirements of 5 C.F.R. § 353.301(d), i.e., to search within the local commuting
area for vacant positions to which it can restore a partially recovered employee
and to consider her for any such vacancies. Cronin, 2022 MSPB 13, ¶ 20. The
Board in Cronin further held that, contrary to its prior suggestion in Latham v.
U.S. Postal Service , 117 M.S.P.R. 400, ¶ 58 n.27 (2012), superseded in part by
regulation on other grounds as stated in Hamilton , 123 M.S.P.R. 404, ¶ 12,
claims of prohibited discrimination cannot serve as an “alternative means” of
showing that a denial of restoration was arbitrary and capricious. Cronin,
2022 MSPB 13, ¶ 21.
In light of Cronin, we have reexamined the appellant’s allegations, which
consist only of the bare assertion that the cancellation of her modified assignment3
was based on prohibited discrimination and her claim that she was informed in
the agency’s FAD that she could appeal her claim to the Board. IAF, Tab 1 at 4,
Tab 5; PFR File, Tab 1. Her pleadings, above and on review, contain no
allegation that the agency’s action was arbitrary and capricious because it failed
to comply with the minimum requirements of 5 C.F.R. § 353.301(d). IAF, Tab 1
at 4, Tab 5; PFR File, Tab 1. On that basis, we find that the appellant failed to
nonfrivolously allege Board jurisdiction over her claims, and we modify the
initial decision to reflect as much. Similarly, we also modify the initial decision
to clarify that the appellant’s discrimination claims cannot serve as an
“alternative means” of showing that the agency’s action was arbitrary and
capricious. See Cronin, 2022 MSPB 13, ¶ 21.
Based on the foregoing, we agree with the administrative judge’s ultimate
conclusion that the appellant failed to make nonfrivolous allegations of Board
jurisdiction.3
3 As noted above, the appellant argues on review that the agency FAD informed her that
she could appeal her claim to the Board. PFR File, Tab 1. Our reviewing court has
stated, however, that any incorrect information provided to an appellant by an agency,
including incorrect appeal rights, cannot extend the Board’s jurisdiction to an appeal
where it does not otherwise exist. See Campion v. Merit Systems Protection Board ,
326 F.3d 1210, 1215 (Fed. Cir. 2003) (the Board's jurisdiction is not plenary; it is
limited to those matters over which it has been given jurisdiction by law, rule or
regulation). As such, the appellant’s argument on review does not provide a basis to
disturb the initial decision. 4
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Espirito_TerrySF-0353-20-0227-I-1_Final_Order.pdf | 2024-09-09 | TERRY ESPIRITO v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0353-20-0227-I-1, September 9, 2024 | SF-0353-20-0227-I-1 | NP |
538 | https://www.mspb.gov/decisions/nonprecedential/Hughes_Adam_S_DA-0752-21-0115-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADAM S. HUGHES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-21-0115-I-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adam S. Hughes , Edinburg, Texas, pro se.
Maria Lerma and Arthur M. Whitman , Esquire, Houston, Texas, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his involuntary resignation appeal for lack of jurisdiction. Generally,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was employed as a Medical Support Assistant. Initial Appeal
File (IAF), Tab 1 at 1, 18, 26. On June 21, 2019, the agency proposed to remove
the appellant under 38 U.S.C. § 714 based on his failure to perform successfully
under two critical performance elements. Id. at 5-7. His removal was
subsequently put on hold under 38 U.S.C. § 714(e). IAF, Tab 8 at 16. On
December 28, 2020, the agency issued its removal decision sustaining both
charges and the penalty of removal. IAF, Tab 1 at 39-42. The decision was to be
effective 5 calendar days from its receipt. Id. at 39, 42. The appellant resigned,
effective December 31, 2020, prior to the effective date of the removal decision.
IAF, Tab 8 at 10-11.
He subsequently filed a Board appeal seemingly challenging the agency’s
removal action. IAF, Tab 1 at 4. Noting that he resigned prior to the effective
date of the removal, the administrative judge treated the appeal as a coerced or2
involuntary resignation appeal, she informed the appellant of how to establish
jurisdiction, and she changed the docket number to better reflect the nature of the
appeal. IAF, Tab 10 at 1, Tab 11 at 1-3, Tab 13. After the parties responded to
the jurisdictional order, IAF, Tabs 12, 14, the administrative judge issued an
initial decision dismissing the appeal for lack of jurisdiction, IAF, Tab 15, Initial
Decision (ID) at 1-2.
The administrative judge found that the appellant failed to nonfrivolously
allege that his resignation was involuntary either by coercion or misleading
statements from the agency. ID at 5-8. Specifically, the administrative judge
found that the appellant could have challenged the agency’s adverse action rather
than resign. ID at 6. She further found that the appellant failed to allege that his
working conditions were so intolerable that a reasonable person in his position
would have felt compelled to resign. ID at 7. Finally, she found that the
appellant failed to identify any specific misleading statements made by any
agency official that he relied on to his detriment. ID at 7-8. She ultimately
concluded that he failed to allege facts which, if proven, would show that the
agency deprived him of the freedom to choose between continuing his
employment with the agency and resigning. ID at 8.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded, and the appellant has replied to its
response. PFR File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the agency coerced his resignation by,
among other things, making misleading statements, engaging in retaliatory
actions, and subjecting him to a difficult and hostile work environment. PFR
File, Tab 1 at 3-6, Tab 5 at 3-4. He also asserts various procedural errors and
other factors that the administrative judge failed to address. PFR File, Tab 1
at 3-6, Tab 5 at 3-4. For the first time in his reply brief, he contends that his3
resignation was the result of the agency’s denial of his request for an
accommodation. PFR File, Tab 5 at 3. He also includes in his reply brief
numerous documents. Id. at 5-20.
An employee-initiated action, such as a resignation, is presumed to be
voluntary, and thus, outside the Board’s jurisdiction. Searcy v. Department of
Commerce, 114 M.S.P.R. 281, ¶ 12 (2010). However, an employee may establish
Board jurisdiction over an involuntary resignation by proving that he lacked a
meaningful choice in the matter and the agency’s wrongful actions deprived him
of that choice. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶¶ 8, 11 (2013).
Among the ways that an employee can establish involuntariness is by proving that
the agency obtained the action through duress or coercion. Searcy, 114 M.S.P.R.
281, ¶ 12. The touchstone of a voluntariness analysis is whether, considering the
totality of the circumstances, factors operated on the employee’s decision-making
process that deprived him of freedom of choice. Id. Intolerable working
conditions may render an action involuntary if the employee demonstrates that the
employer or agency engaged in a course of action that made working conditions
so difficult or unpleasant that a reasonable person in that employee’s position
would have felt compelled to resign. Id. If the appellant presents a nonfrivolous
allegation of Board jurisdiction in this regard,2 he is entitled to a hearing at which
he must prove jurisdiction by a preponderance of the evidence. Hosozawa v.
Department of Veterans Affairs , 113 M.S.P.R. 110, ¶ 5 (2010).
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). An allegation will generally be considered nonfrivolous
when, under oath or penalty of perjury, an individual makes an allegation that is more
than conclusory, plausible on its face, and material to the legal issues in the appeal. Id.4
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that the agency coerced his resignation. 3
We have considered the appellant’s arguments on review that his
resignation was coerced. For example, the appellant argues that he worked for
18 months between the agency’s proposed removal and its removal decision,
during which it was uncertain how long he would have a job. PFR File, Tab 5
at 3. He also appears to allege that the removal action was taken in retaliation for
whistleblowing. PFR File, Tab 1 at 4, Tab 5 at 3. He also asserts that the agency
knew its removal action could not be substantiated. PFR File, Tab 1 at 4. He
additionally argues that he was subject to a hostile work environment and
bullying. PFR File, Tab 1 at 5, Tab 5 at 3. The appellant also alleges that he
resigned under duress due to his heavy workload, his assignment to a temporary
position where he had to work alone for 2½ days, and the laws to limit
protections for “Schedule F” employees, which created more “instability” in his
job. PFR File, Tab 5 at 3. These arguments are not persuasive.
The fact that an employee is faced with the unpleasant choice of either
resigning or opposing an adverse action does not rebut the presumed
voluntariness of his ultimate choice of resignation. Green v. Department of
Veterans Affairs , 112 M.S.P.R. 59, ¶ 8 (2009). Moreover, the appellant could
have challenged the removal action, rather than resign. See Axsom v. Department
of Veterans Affairs , 110 M.S.P.R. 605, ¶ 17 (2009) (noting that the Board
generally will not find an action involuntary when the appellant had the option to
stand and fight the alleged retaliation rather than resign). Indeed, as the
administrative judge noted, the appellant could have challenged any allegedly
retaliatory action before the Board.4 ID at 8 n.3. However, in an involuntary
3 The appellant alleged that his resignation resulted from misleading statements from
the agency. IAF, Tab 12 at 3. The administrative judge considered this argument but
found it unpersuasive. ID at 7-8. The appellant does not challenge this finding on
review, and we discern no reason to disturb it.
4 On review, the appellant appears to contend that the administrative judge did not
consider his letter to the Director, which addressed “mismanagement issues.” PFR File,5
resignation appeal, evidence of retaliation may only be addressed only insofar as
it relates to the issue of voluntariness and not whether the evidence would
establish reprisal as an affirmative defense. Pickens v. Social Security
Administration, 88 M.S.P.R. 525, ¶ 6 (2001). We have considered his claim of
retaliation, but we are not persuaded that such allegations deprived him of a
meaningful choice in the matter. Moreover, the appellant has not nonfrivolously
alleged that the agency knew its removal action could not be substantiated.
Regarding his claim of intolerable working conditions, the appellant must
show that a reasonable employee in his position would have found the working
conditions so oppressive that he would have felt compelled to resign. See Carey
v. Department of Health and Human Services , 112 M.S.P.R. 106, ¶ 5 (2009).
However, an employee is not guaranteed a work environment free of stress.
Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 32 (2000). Indeed, a heavy
workload and temporary placement in an isolated position is generally not so
intolerable as to compel a reasonable person to resign. See id. (noting that
dissatisfaction with work assignments and difficult working conditions are
generally not so intolerable as to compel a reasonable person to resign).
Moreover, he has not outlined any specific allegations of “workplace
bullying.” PFR File, Tab 1 at 5, Tab 5 at 3, 5-8. The appellant also has not
alleged how his uncertain future at the agency created such intolerable working
conditions that a reasonable person would have felt compelled to resign.
See Barnett v. U.S. Postal Service , 59 M.S.P.R. 125, 128 (1993) (finding that an
Tab 1 at 4. It is unclear whether the appellant sought corrective action from the Office
of Special Counsel (OSC). The record reflects that the agency’s removal decision was
put on hold, pursuant to 38 U.S.C. § 714(e), to allow for an investigation of
whistleblower retaliation allegations. IAF, Tab 8 at 16. Additionally, the appellant
asserted below that he filed with OSC, IAF, Tab 12 at 3, but there is no evidence in the
record of a complaint or an OSC final decision. Accordingly, we do not construe this
involuntary resignation appeal as an individual right of action (IRA) appeal. Should the
appellant wish to file an IRA appeal, he should do so with the appropriate regional
office. The Board makes no finding regarding timeliness or jurisdiction regarding such
an appeal. 6
appellant’s uncertain future did not render his retirement decision involuntary
when he could have waited for a determination as to which position he would
have been assigned and whether that assignment could have resulted in a
reduction of pay or grade, which he could have appealed). Likewise, the
appellant does not explain how any potential loss of stability or employment
protections to “Schedule F” employees deprived him of a meaningful choice in
the matter. See, e.g., Allen v. Office of Personnel Management , 77 M.S.P.R. 212,
220 n.4 (1998) (observing that the uncertainty accompanying a restructuring or
reorganization did not render the appellant’s decision involuntary). Accordingly,
we find that these allegations do not evince working conditions so intolerable that
a reasonable person in the appellant’s position would have felt compelled to
resign. See Miller, 85 M.S.P.R. 310, ¶ 32. We also agree with the administrative
judge that the appellant has failed to nonfrivolously allege that these allegedly
unpleasant working conditions or other allegations of coercion deprived him of a
meaningful choice in the matter. ID at 6-8.
For the first time in his reply brief, the appellant alleges that his resignation
was the result of the agency’s denial of his request for reasonable
accommodation, and he attaches his February 20, 2019 request. PFR File, Tab 5
at 3, 18-20. The Board generally will not consider evidence or argument raised
for the first time in a petition for review absent a showing that it is based on new
and material evidence not previously available despite the party’s due diligence.
Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016); Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 213-14 (1980). Indeed, the Board has held that it
need not consider an appellant’s new theory of involuntary resignation on review
when both the evidence and argument were available before the record closed, but
the party failed to submit it. Baldwin v. Department of Veterans Affairs ,
109 M.S.P.R. 392, ¶ 7 (2008). The appellant’s request for an accommodation
occurred before his resignation, and he has not shown why he was unable to raise
this issue or present this evidence to the administrative judge or in his petition for7
review. Given that the evidence and argument was available before the
administrative judge and the appellant did not raise the issue until his reply brief,
we have not considered it. Similarly, we do not consider the appellant’s other
evidence in his reply brief, including a pamphlet for an agency class entitled
“Verbal Defense in Healthcare,” various online articles, correspondence between
the appellant and his supervisor, and correspondence from the Office of the
Inspector General regarding a complaint that he filed. PFR File, Tab 5 at 5-17.
Finally, the appellant asserts that the dismissal information packet he
received from the agency lacked the requisite Government form numbers. PFR
File, Tab 1 at 4-5. Without deciding whether this action amounts to improper
conduct by the agency, we find that the appellant has failed to explain how this
action deprived him of a meaningful choice in the matter.
In conclusion, the appellant has not made a nonfrivolous allegation that he
lacked a meaningful choice in the matter and/or that the agency’s wrongful
actions deprived him of that choice. Therefore, we affirm the administrative
judge’s dismissal of the appeal for lack of jurisdiction.
The appellant’s remaining arguments on review are unpersuasive.
The appellant alleges that there were procedural errors and that the
administrative judge failed to address other factors. For example, he argues that
the timeline of his appeal was changed twice, which altered his ability to properly
present his case. PFR File, Tab 1 at 3. Specifically, he asserts that the initial
phone interview was “moved up 2-3 days” and that, despite a deadline being set
for prehearing submissions, the administrative judge’s subsequent jurisdictional
order required him to respond earlier than that original deadline. Id. It does
appear that the administrative judge originally directed the appellant to file his
prehearing submission by February 22, 2021. IAF, Tab 6 at 1. During a
conference call with the parties, it appears that the issue of a coerced resignation
arose, which resulted in discussions regarding the Board’s jurisdiction. IAF,
Tab 10 at 1. The administrative judge therefore issued a jurisdictional order,8
which apprised the appellant of his jurisdictional burden and ordered him to make
nonfrivolous allegations of jurisdiction by February 5, 2021. IAF, Tab 11 at 3.
The appellant appears to admit that he did not object to any of these deadlines,
and he did not request an extension of time to respond to any order. PFR File,
Tab 1 at 3. Thus, we find that the appellant is precluded from raising this issue
on review. See Pettye v. Office of Personnel Management , 83 M.S.P.R. 260, ¶ 4
n.1 (1999).
The appellant additionally asserts that the initial decision failed to
acknowledge the COVID-19 pandemic and its effect on the healthcare industry.
PFR File, Tab 1 at 5. He also appears to suggest that the Board should apply a
different standard to cases arising in the healthcare industry, particularly with a
focus on ensuring job security in healthcare. Id. at 6. These arguments do not
warrant a different outcome.
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you10
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Hughes_Adam_S_DA-0752-21-0115-I-1_Final_Order.pdf | 2024-09-09 | ADAM S. HUGHES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-21-0115-I-1, September 9, 2024 | DA-0752-21-0115-I-1 | NP |
539 | https://www.mspb.gov/decisions/nonprecedential/Jones_ScottDA-0752-21-0401-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT JONES,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-21-0401-I-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.
Yvette Banker , Esquire, Victoria Coleman , and Darryl Joe , Esquire,
Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, the appellant reasserts his claims
of due process violations, which he argues require reversal of the agency’s
removal action. He also emphasizes that his misconduct was unintentional 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).
challenges the reasonableness of the penalty. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Jones_ScottDA-0752-21-0401-I-1_Final_Order.pdf | 2024-09-09 | SCOTT JONES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-21-0401-I-1, September 9, 2024 | DA-0752-21-0401-I-1 | NP |
540 | https://www.mspb.gov/decisions/nonprecedential/Weiss_Linda_W_NY-0707-16-0149-X-1_and_NY-0707-16-0149-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LINDA W. WEISS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-0707-16-0149-X-1
NY-0707-16-0149-C-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Garay Heelan , Esquire, Debra Roth , Esquire, and Conor D. Dirks ,
Esquire, Washington, D.C., for the appellant.
Alfred E. Steinmetz , Esquire, and Xan DeMarinis , Esquire, Washington,
D.C., for the agency.
Stephen F. Butera , Esquire, Clarksburg, West Virginia, for the agency.
Kimberly Negley , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1In a June 15, 2022 Order, the Board denied the agency’s petition for review
and affirmed the May 26, 2016 compliance initial decision to the extent it found
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the agency in noncompliance with the final decision in the underlying appeal,
which ordered the agency to cancel the appellant’s removal from her Senior
Executive Service (SES) position, reinstate her, and provide her with back pay,
interest on the back pay, and other benefits. Weiss v. Department of Veterans
Affairs, MSPB Docket No. NY-0707-16-0149-C-1, Order (June 15, 2022);
Weiss v. Department of Veterans Affairs , MSPB Docket No. NY-0707-16-0149-
C-1, Compliance File, Tab 11, Compliance Initial Decision, Tabs 13, 15. The
Board directed the agency to file evidence of compliance and referred the
appellant’s petition for enforcement to the MSPB’s Office of General Counsel to
obtain compliance. Order, ¶ 15. We now JOIN the compliance referral
proceeding, MSPB Docket No. NY-0707-16-0149-X-1, and the compliance
proceeding, MSPB Docket No. NY-0707-16-0149-C-1, for processing. For the
reasons discussed below, we now find the agency in compliance and DISMISS the
petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2When, as here, the Board finds a personnel action unwarranted, the aim is to
place the appellant, as nearly as possible, in the situation she would have been in
had the wrongful personnel action not occurred. Vaughan v. Department of
Agriculture, 116 M.S.P.R. 319, ¶ 5 (2011); King v. Department of the Navy ,
100 M.S.P.R. 116, ¶ 12 (2005), aff’d per curiam , 167 F. App’x 191 (Fed. Cir.
2006). The agency bears the burden to prove compliance with the Board’s order
by a preponderance of the evidence.2 Vaughan, 116 M.S.P.R. 319, ¶ 5; 5 C.F.R.
§ 1201.183(d). An agency’s assertions of compliance must include a clear
explanation of its compliance actions supported by documentary evidence.
Vaughan, 116 M.S.P.R. 319, ¶ 5. The appellant may rebut the agency’s evidence
2 A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).2
of compliance by making specific, nonconclusory, and supported assertions of
continued noncompliance. Id.
¶3The agency has provided narrative statements and evidence showing it has
canceled the appellant’s removal, removed references to the removal from her
official personnel file, reinstated her to an equivalent SES position retroactive to
the date of her removal, and provided her with back pay, interest on back pay, and
other appropriate benefits. Weiss v. Department of Veterans Affairs , MSPB
Docket No. NY-0707-16-0149-X-1, Compliance Referral File (CRF), Tabs 3, 5, 7,
15, 19-21, 24. In its final submission, the agency asserted that it was in full
compliance with the Board’s orders. CRF, Tab 24 at 8. In an August 14, 2024
compliance status report, the appellant indicated that she “agrees that the Agency
has now fully complied with the Board’s June 15, 2022 Order.” CRF, Tab 25.
¶4In light of the foregoing, we find that the agency is now in compliance and
dismiss the appellant’s petition for enforcement. This is the final decision of the
Merit Systems Protection Board in these compliance proceedings. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal. 3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Weiss_Linda_W_NY-0707-16-0149-X-1_and_NY-0707-16-0149-C-1_Final_Order.pdf | 2024-09-09 | LINDA W. WEISS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-0707-16-0149-X-1, September 9, 2024 | NY-0707-16-0149-X-1 | NP |
541 | https://www.mspb.gov/decisions/nonprecedential/Johnson_Clyde_E_SF-315H-21-0301-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLYDE E. JOHNSON,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-315H-21-0301-I-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clyde E. Johnson , San Diego, California, pro se.
Pam Hudson , San Diego, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant claims that, as a pro se appellant, he did not
understand that he had to establish Board jurisdiction, and he argues, as he did
below, the merits of his termination. Petition for Review (PFR) File, Tab 1.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly found that the appellant failed to
establish either a statutory or regulatory right to an appeal with the Board. Initial
Appeal File (IAF), Tab 7, Initial Decision (ID) at 5-6. As such, she appropriately
dismissed the appellant’s appeal for lack of jurisdiction. ID at 6-7. The
appellant’s arguments on review regarding his pro se status2 and the merits of his
probationary termination do not persuade us to disturb the administrative judge’s
findings.3
2 Following the appellant’s initial appeal, the administrative judge issued a
jurisdictional order informing the appellant of what he must prove to establish Board
jurisdiction. IAF, Tab 3. The appellant did not respond to the jurisdictional order.
3 The appellant submits with his petition for review several documents, including a
May 15, 2020 agency document concerning his suitability for the Motor Vehicle
Operator position and three preappointment emails from the agency concerning his
suitability, a security investigation, and his job offer, dated May 27, 2020,
November 27, 2020, and February 3, 2021, respectively. PFR File, Tab 1 at 7-10.
These documents do not appear to have been submitted into the record below. IAF,
Tab 1. Generally, the Board will not consider evidence submitted for the first time with
a petition for review absent a showing that it was unavailable before the record closed
before the administrative judge despite the party’s due diligence. See Avansino v. U.S.2
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
Postal Service, 3 M.S.P.R. 211, 213 14 (1980 ). Here, the record closed on or around
May 12, 2021. IAF, Tab 3 at 5, Tab 6. All of the documents submitted by the appellant
on review pre-date the close of record and, thus, were available when the record closed
below. PFR File, Tab 1 at 7-10. The appellant has not explained why he was unable to
submit them then, nor has he explained how they are relevant to the question of
jurisdiction or how they are otherwise of sufficient weight to warrant an outcome
different than that of the initial decision. Id. at 2-5. Thus, none of the documents
provides a basis to grant the petition for review. See Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980 ) (stating that the Board generally will not grant a petition for
review based on new evidence absent a showing that it is of sufficient weight to warrant
an outcome different from that of the initial decision).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Johnson_Clyde_E_SF-315H-21-0301-I-1_Final_Order.pdf | 2024-09-09 | CLYDE E. JOHNSON v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-21-0301-I-1, September 9, 2024 | SF-315H-21-0301-I-1 | NP |
542 | https://www.mspb.gov/decisions/nonprecedential/Killingsworth_Richard_D_SF-0752-22-0431-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD D. KILLINGSWORTH,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-22-0431-I-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan V. Edmunds , Esquire, and Brittany Forrester , Esquire, Ponte Vedra
Beach, Florida, for the appellant.
David Fitzpatrick , Pearl Harbor, Hawaii, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. For the reasons set forth below, the appellant’s petition for
review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant, a GS-12 Arms Ammunition and Explosive Manager, filed
the instant appeal challenging his removal based on a single charge of failure to
carry out duties expected of his position. Initial Appeal File (IAF), Tab 1 at 4,
27. The appellant alleged an affirmative defense of harmful procedural error for
failing to properly consider the factors in Douglas v. Veterans Administration , 5
M.S.P.R. 280, 305-06 (1981). Id. at 11-12.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision affirming the appellant’s removal. IAF, Tab 19, Initial
Decision (ID) at 1, 15. She sustained the charge and found that the agency
established nexus between the appellant’s misconduct and the efficiency of the
service because the appellant stipulated that the agency proved the charge and
that the charge affects the efficiency of the service. ID at 4. She also found that
the penalty of removal was within the bounds of reasonableness. ID at 12-15.
The initial decision stated that it would become final on January 4, 2023, unless a
petition for review was filed by that date. ID at 16.
On January 5, 2023, the appellant filed a petition for review of the initial
decision. Petition for Review (PFR) File, Tab 1. He did not allege any error in
the initial decision, but rather stated that he wished to be reinstated in order to
“buy back” his military time to add to his civilian service and retire. Id. at 4.
The Acting Clerk of the Board subsequently notified the appellant that his
petition for review appeared to be untimely and provided him with an opportunity
to submit a motion requesting either to accept the filing as timely or waive the
time limit for good cause. PFR File, Tab 3 at 2. The appellant responded
alleging that he mistakenly filed a “new appeal” on January 5, 2023, instead of a
timely petition for review. PFR File, Tab 5 at 5. He also alleged that his delay
should be excused because he attempted to file his petition for review on time and
it was rejected, he was confused by the Board’s e-Appeal process, he was trying
to retain an attorney, and he was away from home taking a course during the2
filing period. PFR File, Tab 2 at 4, Tab 5 at 5-6. The agency has responded to
the petition for review. PFR File, Tab 4. The appellant has submitted a reply to
the agency’s response. PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
The petition for review is untimely filed.
The initial decision indicated that the appellant’s petition for review had to
be filed by January 4, 2023. ID at 16. However, the appellant did not file his
petition for review until January 5, 2023, one day after the deadline. PFR File,
Tab 1. The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date he received the initial decision. 5 C.F.R.
§ 1201.114(e). The appellant is registered as an e-filer and, therefore, is deemed
to have received the administrative judge’s orders on the date of electronic
submission. IAF, Tab 1 at 2, Tab 20; Rivera v. Social Security Administration ,
111 M.S.P.R. 581, ¶ 5 (2009); 5 C.F.R. § 1201.14(m)(2) (2022). Further, as an e-
filer, the appellant was responsible for monitoring his case activity at e-Appeal to
ensure that he received all case-related documents. 5 C.F.R. § 1201.14(j)(3)
(2022).
We deem the appellant to have received the initial decision on
November 30, 2022, the date it was electronically submitted. ID at 1; IAF,
Tab 20. Therefore, his deadline for filing a petition for review was 35 days later,
on January 4, 2023. The appellant’s January 5, 2023 petition for review was filed
1 day untimely.2
2 The appellant’s claim that he mistakenly filed an initial appeal form, when he intended
to submit a petition for review, is immaterial because his submission was still 1 day
untimely. PFR File, Tab 5 at 5. 3
The appellant has failed to demonstrate good cause for his untimely filed petition
for review.
The Board will waive its filing deadline only upon a showing of good cause
for the delay in filing. 5 C.F.R. §§ 1201.114(f)-(g). To establish good cause for
an untimely filing, a party must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. Alonzo v. Department of
the Air Force, 4 M.S.P.R. 180, 184 (1980). The Board will consider the length of
the delay, the reasonableness of his excuse and his showing of due diligence,
whether he is proceeding pro se, and whether he has presented evidence of the
existence of circumstances beyond his control that affected his ability to comply
with the time limits or of unavoidable casualty or misfortune which similarly
shows a causal relationship to his inability to timely file his petition. Moorman v.
Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
Applying the Moorman factors, we find the appellant has failed to establish
good cause for his untimely petition for review. Although the brevity of the
appellant’s 1-day delay and the fact that he was not represented by an attorney at
the time he filed his petition for review weighs in favor of excusing the delay, we
find those considerations are outweighed by the appellant’s failure to show that
he exercised due diligence or to provide a reasonable excuse for his delay.
See Noble v. U.S. Postal Service , 73 M.S.P.R. 59, 62-63 (1997) (finding a
minimal 2-day delay in filing a petition for review and the fact that the appellant
was not represented by an attorney were outweighed by appellant’s failure to
exercise due diligence and ordinary prudence under the circumstances).
The appellant’s allegations that he was confused by the Board’s e-Appeal
process and that he was trying to retain an attorney to represent him are
insufficient to establish good cause for his delay. PFR File, Tab 2 at 4, Tab 5
at 5-6. The Board has held that an appellant’s lack of sophistication in Board
matters and a general inability to understand instructions and procedures does not4
establish good cause to waive the filing deadline. Jones v. U.S. Postal Service ,
86 M.S.P.R. 410, ¶ 6 (2000) (finding an appellant’s assertions that he did not
have an attorney and was confused about the filing date did not establish good
cause for a filing delay). Similarly, an appellant’s inability to retain or afford an
attorney does not establish good cause for a delay in filing his petition for review.
Huskins v. U.S. Postal Service , 100 M.S.P.R. 664, ¶ 6 (2006).
Lastly, we find the appellant’s remaining allegations that he was taking a
course away from home, was “unable to find a location to fax, e-mail, or e-file
[his petition for review],” and was “prevented . . . access during the day” to file
his petition for review are also insufficient to establish good cause for his delay.
PFR File, Tab 5 at 5-6. The Board has held that being away from home during
the entire filing period does not constitute good cause to excuse a filing delay.
Smith v. Office of Personnel Management , 57 M.S.P.R. 663, 666 (1993). This is
especially true here because the appellant was a registered e-filer and therefore,
received an electronic copy of the initial decision the day it was issued, rather
than at his home address. Moreover, if the appellant felt that he did not have
sufficient time or the ability to file a petition for review by the deadline because
he was traveling, he could have requested an extension of time to file a petition
on or before the date it was due, but he did not do so. Tyler v. U.S. Postal
Service, 87 M.S.P.R. 460, ¶ 4 (2001) (an appellant must show good cause for not
seeking an extension of time prior to the filing deadline); 5 C.F.R. § 1201.114(f)
(stating that a motion for an extension of time must be filed with the Clerk of the
Board on or before the date on which the petition is due).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s removal appeal.5
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Killingsworth_Richard_D_SF-0752-22-0431-I-1_Final_Order.pdf | 2024-09-09 | RICHARD D. KILLINGSWORTH v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-22-0431-I-1, September 9, 2024 | SF-0752-22-0431-I-1 | NP |
543 | https://www.mspb.gov/decisions/nonprecedential/Frank_Bruce_A_DE-1221-23-0197-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRUCE A. FRANK,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-1221-23-0197-W-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James R. Tanner , Esquire, Tooele, Utah, for the appellant.
Kateni T. Leakehe , Esquire, Dugway, Utah, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action (IRA)
appeal. On petition for review, the appellant challenges the administrative
judge’s prehearing jurisdictional rulings and his finding on the merits that the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant did not prove that he made a protected whistleblowing disclosure. He
also argues that the administrative judge erred by excluding evidence at the
hearing, and he reraises numerous arguments concerning the strength of the
agency’s personnel actions that are not relevant to the determinative issue of
whether he made a protected disclosure. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
Under the Whistleblower Protection Enhancement Act, at the merits stage
of the appeal, the appellant must prove by preponderant evidence that he made a
protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in an activity
protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that such
disclosure or activity was a contributing factor in an agency’s personnel action.
Smith v. Department of the Army , 2022 MSPB 4, ¶ 13. If the appellant meets that
burden, the agency is given an opportunity to prove by clear and convincing
evidence that it would have taken the same personnel action absent the protected
disclosure or activity. Id.; see 5 U.S.C. § 1221(e)(1)-(2). Before adjudicating an
IRA appeal on the merits, however, the Board must make a threshold finding of
jurisdiction, including whether the appellant made a nonfrivolous allegation of a2
protected disclosure or engaged in protected activity. Bishop v. Department of
Agriculture, 2022 MSPB 28, ¶¶ 11-15. Only after Board jurisdiction is
established is the Board required to provide the employee with a hearing on the
merits. Spencer v. Department of the Navy , 327 F.3d 1354, 1356 (Fed. Cir.
2003).
A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of facts that, if proven, would show that the appellant disclosed a
matter that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Gabel v.
Department of Veterans Affairs , 2023 MSPB 4, ¶ 6. Here, the administrative
judge provided the appellant with several opportunities to clarify his allegations
of protected whistleblowing disclosures, Initial Appeal File (IAF), Tabs 3, 7, 13,
20, prior to issuing his jurisdictional rulings, IAF, Tabs 20, 26. Notably, the
appellant failed to preserve for review any objection to these rulings, which found
that the appellant made timely, nonfrivolous allegations concerning only one
allegedly protected disclosure. IAF, Tab 20 at 1-3, Tab 26 at 1-2; cf. Harper v.
Office of Personnel Management , 116 M.S.P.R. 309, ¶ 6 (2011) (finding that the
appellant failed to preserve any objection to the administrative judge’s
characterization of the issues for hearing because she did not object to the
administrative judge’s prehearing ruling when given the opportunity to do so).
Nevertheless, we have considered the appellant’s arguments on review, Petition
for Review (PFR) File, Tab 1, but find no error in the administrative judge’s
conclusion that he did not make timely, nonfrivolous allegations of any other
protected disclosures. We also find no error in the administrative judge’s
jurisdictional finding of nonfrivolous allegations of a reasonable belief regarding
only an abuse of authority—rather than a violation of law, rule, or regulation, as
the appellant reasserts on review. IAF, Tab 20 at 2; PFR File, Tab 1 at 6-7,
16-17. 3
Concerning the alleged protected disclosure over which the Board has
jurisdiction, the administrative judge held the appellant’s requested hearing on
the issue and found that he did not prove by preponderant evidence that he
reasonably believed that the matter disclosed evidenced an abuse of authority.
IAF, Tab 30, Initial Decision at 8-13. The Board has historically defined an
abuse of authority as an arbitrary and capricious exercise of power by a Federal
official or employee that adversely affects the rights of any person or results in
personal gain or advantage to himself or to other preferred persons. See Chavez
v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 22 (2013). However, in
Smolinski v. Merit Systems Protection Board , 23 F.4th 1345, 1351-52 (Fed. Cir.
2022), the U.S. Court of Appeals for the Federal Circuit defined an abuse of
authority more broadly as an arbitrary and capricious exercise of authority that is
contrary to the agency’s mission. Whichever standard is applied in this case, the
result is the same. The administrative judge made well-reasoned findings
assessing the credibility of witnesses and weighing the documentary evidence.
Id. Because a hearing was held below, and the administrative judge’s credibility
determinations are based, in part, on witness demeanor at the hearing, we defer to
those credibility determinations, absent a sufficiently sound reason to disturb
those findings. See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367,
1372-73 (Fed. Cir. 2016); Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002). Here, the appellant has not established a sufficiently sound
reason to disturb the administrative judge’s credibility-based findings on review.
PFR File, Tab 1. The appellant also appears to challenge the administrative
judge’s legal analysis but has not shown that the administrative judge erroneously
applied the law to the facts of this case. PFR File, Tab 1 at 26.
Lastly, the appellant argues that the administrative judge erred by
excluding evidence at the hearing. Id. at 24-25. To obtain reversal of an initial
decision on the ground that the administrative judge abused his discretion in
excluding evidence, the petitioning party must show that the administrative judge4
disallowed relevant evidence that could have affected the outcome of the appeal.
See Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010);
Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48, ¶ 12 (2004), aff’d,
121 F. App’x 865 (Fed. Cir. 2005). We find that the appellant has not made such
a showing here.
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice 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. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 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 than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Frank_Bruce_A_DE-1221-23-0197-W-1_Final_Order.pdf | 2024-09-09 | BRUCE A. FRANK v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-1221-23-0197-W-1, September 9, 2024 | DE-1221-23-0197-W-1 | NP |
544 | https://www.mspb.gov/decisions/nonprecedential/Welcome_James_R_DA-0752-22-0395-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES R. WELCOME, II,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-22-0395-I-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Chris R. Pittard , Boerne, Texas, for the appellant.
Judy Lopez King , Joint Base San Antonio-Randolph, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his alleged involuntary resignation appeal for lack of jurisdiction . On
petition for review, the appellant reasserts that he had no choice but to resign
from his position due to threats and intimidation. He also alleges that he was
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
unable to access documents in e-Appeal. Petition for Review (PFR) File, Tab 1
at 3. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
Regarding the appellant’s assertion that he was unable to access the
documents in the initial appeal record, as a registered e-filer during adjudication
before the administrative judge, the appellant consented to accept service of
Board documents by email and is deemed to have received the documents below,
including the acknowledgment order and the agency file, on the date of electronic
submission. 5 C.F.R. § 1201.14(e)(1), (j)(3), (m)(2) (2022); see Palermo v.
Department of the Navy , 120 M.S.P.R. 694, ¶ 3 (2014); Mills v. U.S. Postal
Service, 119 M.S.P.R. 482, ¶ 6 (2013) (observing that, as a registered e -filer, the
appellant was deemed to have received the administrative judge’s orders on the
date of electronic submission and was responsible for monitoring e -Appeal to
ensure that she received all case -related documents). Even so, the appellant had
the opportunity to address the documents on review, to the extent his arguments
would have implicated the Board’s jurisdiction. See Lovoy v. Department of
Health and Human Services , 94 M.S.P.R. 571, ¶ 30 (2003) (considering2
arguments raised for the first time in a petition for review because they
implicated the Board’s jurisdiction, an issue that is always before the Board and
may be raised by either party or sua sponte by the Board at any time during a
Board proceeding).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 The appellant has filed an untimely reply to the agency’s response to the petition for
review. PFR File, Tab 6. The agency filed its response to the petition for review on
October 1, 2022, and the appellant filed an untimely request for an extension of time to
file a reply on October 17, 2022. PFR File, Tabs 3-4. As noted in the Office of the
Clerk of the Board’s letter acknowledging the petition for review, a reply to a response
to a petition for review must be filed within 10 days after the date of service of the
response to the petition for review. PFR File, Tab 3 at 1; see 5 C.F.R. § 1201.114(e).
The Office of the Clerk of the Board denied the extension request as untimely and
referred the appellant to the Board’s regulations governing late filings, including the
provision that such a filing must include a showing of good cause. PFR File, Tab 5; see
5 C.F.R. § 1201.114(g). The appellant subsequently filed an untimely reply to the
agency’s response to the petition for review that did not include an explanation of good
cause for its untimeliness. PFR File, Tab 6. Accordingly, we reject the appellant’s
reply to the response to the petition for review as untimely filed without good cause
shown for the delay and have not considered it.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 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. 5
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.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. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Welcome_James_R_DA-0752-22-0395-I-1_Final_Order.pdf | 2024-09-09 | null | DA-0752-22-0395-I-1 | NP |
545 | https://www.mspb.gov/decisions/nonprecedential/Jernigan_Matthew_T_AT-3443-22-0077-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW TODD JERNIGAN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
AT-3443-22-0077-I-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew Todd Jernigan , Biloxi, Mississippi, pro se.
Lorna Jerome , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
BACKGROUND
The appellant filed a Board appeal wherein he referenced a number of
different issues. Initial Appeal File (IAF), Tab 1 at 4-5. The administrative
judge issued an order regarding jurisdiction. IAF, Tab 3 at 1-3.
On February 28, 2022, after the appellant and the agency responded to the
jurisdictional order, IAF, Tab 5-10, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction, IAF, Tab 11, Initial
Decision (ID) at 1, 4. In so doing, she acknowledged that, in one of his filings,
the appellant had asserted that he had been discriminated against based on his
uniformed service. ID at 3 n.2. She explained that, because it appeared that the
appellant had attempted to raise a claim under the Uniformed Services
Employment and Reemployment Rights Act of 1994 (USERRA), a separate Board
appeal had been docketed for this apparent claim, i.e., Jernigan v. Department of
Homeland Security , MSPB Docket No. AT-4324-22-0144-I-1.2 Id. The
administrative judge indicated that her initial decision in the instant matter would
become final on April 4, 2022, unless a petition for review was filed by that date.
ID at 4.
On June 2, 2022, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. In his petition, the appellant asserts that he received
the initial decision on March 1, 2022. Id. at 3. He references a chemical
poisoning that occurred in October 2020, as well as an “[e]mergency medical
condition” related to his left arm that occurred on December 31, 2020. Id. at 4.
He avers that he began experiencing medical symptoms related to one or both of
these conditions on February 18, 2022, and that he underwent surgery/treatment
for the same on March 20-25, 2022. Id. The appellant also reasserts that he had
difficulty contacting agency counsel. Id. With his petition, the appellant
2 On March 1, 2022, the administrative judge dismissed the appellant’s USERRA appeal
for lack of jurisdiction. Jernigan v. Department of Homeland Security , MSPB Docket
No. AT-4324-22-0144-I-1, Initial Appeal File, Tab 5, Initial Decision at 1, 3. The
appellant did not file a petition for review of this decision.
3
provides documentation, i.e., medical bills, which indicate that he was
hospitalized from March 20-25, 2022. Id. at 6-7. The agency has not filed a
response to the appellant’s petition for review.
On June 3, 2022, the Office of the Clerk of the Board notified the appellant
that his petition for review was untimely filed and explained that he must file, on
or before June 18, 2022, a motion asking the Board to accept the petition for
review as timely and/or to waive the time limit for good cause. PFR File, Tab 2
at 1-2. In this notification, the Office of the Clerk of the Board also explained
that, to the extent the appellant was alleging that his health affected his ability to
meet filing deadlines, he must do the following: (1) identify the time period
during which he suffered from the illness; (2) submit medical or other evidence
showing that he suffered from the alleged illness during that time period; and
(3) explain how the illness prevented him from timely filing his petition for
review. Id. at 7 n.1.
Thereafter, on July 15, 2022, the appellant submitted a motion requesting
that the Board accept his petition for review and waive the time limit. PFR File,
Tab 4. In this pleading, the appellant states only as follows: “PLAINTIFF
REQUESTS MOTION TO ACCEPT FILING FOR REVIEW, AND WAIVER OF
TIME LIMIT. PLAINTIFF SUBMITTED MEDICAL CONDITIONS AND
STATEMENT.” Id. at 3 (punctuation in original).
ANALYSIS
A petition for review must be filed within 35 days after the date of issuance
of the initial decision or, if the petitioner shows that he received the initial
decision more than 5 days after the date of issuance, within 30 days after the date
he received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial
decision was issued on February 28, 2022, and electronically sent to the appellant
the same day. IAF, Tab 12 at 1. Although the appellant alleges that he did not
receive the decision until March 1, 2022, PFR File, Tab 1 at 3, documents served
4
on registered e-filers are deemed received on the date of electronic submission;
accordingly, the appellant, a registered e-filer during the adjudication of the
initial appeal, is deemed to have received the initial decision on February 28,
2022, and his petition for review is untimely filed by approximately 2 months,
PFR File, Tab 1; see 5 C.F.R. § 1201.14(m)(2) (2022).
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g).
To establish good cause for an untimely filing, the appellant must show that he
exercised due diligence or ordinary prudence under the particular circumstances
of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant is proceeding pro se, and whether he has presented evidence of the
existence of circumstances beyond his control that affected his ability to comply
with the time limits or of unavoidable casualty or misfortune that similarly shows
a causal relationship to his inability to file a timely petition. See Wyeroski v.
Department of Transportation , 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950
(Fed. Cir. 2007).
We find that the appellant has not demonstrated good cause for the
untimely filing of his petition for review. Although the appellant is pro se, his 2-
month delay in filing is significant. See Floyd v. Office of Personnel
Management, 95 M.S.P.R. 260, ¶ 6 (2003) (finding the pro se appellant’s 1-month
delay not minimal). To the extent the appellant argues that his health conditions
precluded him from timely filing his petition or requesting an extension of time
within which to do so, we find his argument unavailing.3 Indeed, apart from
3 As discussed above, the Office of the Clerk of the Board specifically explained to the
appellant that, to the extent he was alleging that his health affected his ability to meet
filing deadlines, he must provide the Board with specific information. PFR File, Tab 2
at 7 n.1. Even considering his untimely filed motion in response to the notice from the
Office of the Clerk of the Board, the appellant did not provide such information;
instead, he appears to refer the Board to his petition for review. PFR File, Tab 4 at 3.
5
March 20-25, 2022, the appellant has failed to show that he was hospitalized,
under treatment, or otherwise incapacitated for the period of time between
February 28, 2022, the date he received the initial decision, and April 4, 2022, the
deadline for timely filing his petition for review. See Cornelius v. National
Credit Union Administration , 87 M.S.P.R. 497, ¶ 8 (2001) (finding that the
appellant failed to establish that his untimely filing was the result of a medical
condition when, although the appellant provided evidence regarding past medical
problems, he failed to demonstrate that he was hospitalized, under treatment, or
otherwise incapacitated during the relevant timeframe). Moreover, he has
provided no evidence regarding the 2-month period of delay between April 4,
2022, and June 2, 2022. See id. Accordingly, despite his pro se status, we find
that the appellant has failed to show good cause for his delay and we decline to
excuse the same. See Lockhart v. Office of Personnel Management , 94 M.S.P.R.
396, ¶¶ 7-8 (2003) (declining to excuse a 5 -day delay in filing a petition for
review when the pro se appellant failed to show good cause for the same).4
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding this matter.
Thus, we find that he has failed to demonstrate good cause for his untimely filing on the
basis of illness, or mental or physical capacity. See Lacy v. Department of the Navy ,
78 M.S.P.R. 434, 437 (1998); see also Stribling v. Department of Education ,
107 M.S.P.R. 166, ¶ 8 (2007).
4 To the extent the appellant challenges the administrative judge’s jurisdictional
conclusion, PFR File, Tab 1 at 4-5, a different outcome is not warranted, see Guevara
v. Department of the Navy , 112 M.S.P.R. 39, ¶ 7 (2009) (finding that the appellant
failed to establish good cause for his untimely filed petition for review when he merely
argued the merits of his appeal).
6
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
8
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
9
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Jernigan_Matthew_T_AT-3443-22-0077-I-1_Final_Order.pdf | 2024-09-09 | MATTHEW TODD JERNIGAN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-3443-22-0077-I-1, September 9, 2024 | AT-3443-22-0077-I-1 | NP |
546 | https://www.mspb.gov/decisions/nonprecedential/Moffatt_John_D_PH-1221-21-0093-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN D. MOFFATT,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
PH-1221-21-0093-W-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John D. Moffatt , Cross Lanes, West Virginia, pro se.
Nathaniel G. Himert , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal as untimely filed. On
petition for review, the appellant reasserts that he was unable to timely file his
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
IRA appeal because he was quarantined due to COVID. Petition for Review
(PFR) File, Tab 1 at 4. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The appellant provides several documents for the Board’s consideration for
the first time on review, including a response to the agency’s statement of facts in
its narrative response to the appeal and documents that appear to be related to his
14day suspension. PFR File, Tab 1 at 9-20; Initial Appeal File (IAF), Tab 1
at 7-11, Tab 8 at 5-7. The Board will not grant a petition for review based on
new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(d). The
appellant’s documents submitted for the first time on review address the merits of
his appeal and are not relevant to the dispositive timeliness issue. See Brockman
v. Department of Defense , 108 M.S.P.R. 490, ¶ 8 (2008) (observing that an
appellant’s documents submitted for the first time on review and arguments on
the merits of his appeal were not relevant to the untimeliness of his petition for
review). We therefore decline to consider them further.2
The appellant also argues, for the first time on review, that the agency did
not “contact [him] . . . to define the issues, agree to stipulations and discuss the
possibility of settlement,” as required by the Acknowledgment Order. PFR File,
Tab 1 at 4. We find his argument unavailing. The Board generally will not
consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Clay v. Department of the Army , 123 M.S.P.R.
245, ¶ 6 (2016). Again, because the relevant issue on review is timeliness, the
appellant’s new argument is not material to our resolution of this case. Further,
the Acknowledgment Order, dated January 5, 2021, directed the agency to contact
the appellant within 35 calendar days, or by February 9, 2021, to discuss the
possibility of settlement and other matters. IAF Tab 2 at 2. However, the
administrative judge issued the initial decision on January 28, 2021.
Consequently, the agency’s time period for complying with this portion of the
order had not expired when the initial decision was issued.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: _____________________ _________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Moffatt_John_D_PH-1221-21-0093-W-1_Final_Order.pdf | 2024-09-09 | JOHN D. MOFFATT v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-1221-21-0093-W-1, September 9, 2024 | PH-1221-21-0093-W-1 | NP |
547 | https://www.mspb.gov/decisions/nonprecedential/Donald_James_L_DE-315H-20-0288-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES L. DONALD,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DE-315H-20-0288-I-1
DATE: September 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kenneth L. Mack , Esquire, and Ginger Gafford , Esquire, Grand Prairie,
Texas, for the appellant.
Paul Y. Kim , Esquire, Redstone Arsenal, Alabama, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant reasserts that the Board has jurisdiction over his
appeal pursuant to 5 C.F.R. § 315.815 because the agency based his termination
on conditions that arose prior to his appointment and did not follow the proper
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
procedures, and he reiterates his argument that the agency prematurely terminated
him because the status of his security clearance had not been finally resolved.
Petition for Review (PFR) File, Tab 1 at 4, 7. He also argues that the agency’s
failure to submit the agency file required by the administrative judge’s
acknowledgment order denied him the opportunity to meet his evidentiary
burden.2 Id. at 8-9. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
2 The record reflects that the agency failed to comply with three orders for it to submit
the agency file. Initial Appeal File (IAF), Tab 15, Initial Decision (ID) at 2 n.1; IAF,
Tabs 2, 10, 13. The administrative judge nevertheless did not sanction the agency for
its failure because he found that the appeal must be dismissed for lack of jurisdiction.
ID at 2 n.1. On review, the appellant contends that the agency’s failure to submit its
file harmed his case. PFR File, Tab 1 at 9. However, the documents he claims that he
was allegedly denied access to by the agency’s failure to submit its file, which concern
the agency’s policies toward probationary terminations generally, were not the type of
documents required to be included in the agency file by the administrative judge’s
acknowledgment order, which described documents solely concerning the appellant’s
termination. Id.; IAF, Tab 2, 9. The policy documents sought by the appellant are
instead the sort of materials that might be requested in discovery, which was also
explicitly described in the acknowledgment order. IAF, Tab 2 at 3-4. However, the
record does not reflect that the appellant initiated discovery, or, if he did so, that he
sought to compel the agency’s response. Thus, even if the administrative judge abused
his discretion in declining to sanction the agency for its failure to submit the agency
file, that decision did not harm the appellant because it was not the reason he failed to
obtain the documents he describes. Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984 (an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision). 2
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 The agency terminated the appellant during his probationary period based on his
ineligibility to obtain and maintain a secret security clearance, which was a condition of
his employment. IAF, Tab 1 at 8-11, Tab 5 at 4-5. Such a reason for the termination is
a post-appointment reason. Von Deneen v. Department of Transportation , 33 M.S.P.R.
420, 423, aff’d, 837 F.2d 1098 (Fed. Cir. 1987) (Table); see LeMaster v. Department of
Veterans Affairs, 123 M.S.P.R. 453, ¶ 9 (2016). The administrative judge correctly
found, however, that the agency also based its action on a pre-appointment reason,
specifically, the appellant’s failure to disclose information on a form during the
application process. ID at 5; see James v. Department of the Army , 55 M.S.P.R. 124,
126 (1992). Because the agency action was based, in part, on pre-appointment reasons,
the administrative judge properly considered whether the agency had complied with the
procedural requirements set forth at 5 C.F.R. § 315.805(a)-(c). ID at 5; see 5 C.F.R.
§§ 315.805, 315.806(c). Contrary to the appellant’s arguments on review, the
administrative judge correctly found that the appellant did not nonfrivolously allege
that the agency failed to comply with the procedural requirements. ID at 4-5.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 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 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
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Donald_James_L_DE-315H-20-0288-I-1_Final_Order.pdf | 2024-09-09 | JAMES L. DONALD v. DEPARTMENT OF DEFENSE, MSPB Docket No. DE-315H-20-0288-I-1, September 9, 2024 | DE-315H-20-0288-I-1 | NP |
548 | https://www.mspb.gov/decisions/nonprecedential/Stewart_Christie_D_DC-0752-22-0476-I-1_DE-531D-22-0164-I-2_And_DC-1221-22-0336-W-2_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTIE STEWART,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBERS
DE-531D-22-0164-I-2
DC-1221-22-0336-W-2
DC-0752-22-0476-I-1
DATE: September 6, 2024
THIS ORDER IS NONPRECEDENTIAL1
Christie Stewart , Bowie, Maryland, pro se.
Stephanie Ramjohn Moore , Esquire, and Benjamin Waschler , Esquire,
Washington, D.C., for the agency.
Hillary Clark , Beltsville, Maryland, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied corrective action in her individual right of action (IRA) appeal, affirmed
the denial of a within-grade increase (WIGI), and dismissed her involuntary
resignation claim for lack of jurisdiction.2 For the reasons discussed below, we
GRANT the appellant’s petition for review. We AFFIRM the following findings
by the administrative judge: (1) the agency proved by substantial evidence that
the appellant was not performing at an acceptable level of competence and,
therefore, the WIGI denial was proper; (2) the appellant did not prove her
affirmative defenses of discrimination, retaliation for equal employment
opportunity (EEO) activity, and harmful error; and (3) the appellant did not prove
jurisdiction over her constructive removal claim. Regarding the appellant’s
whistleblower reprisal claim, we AFFIRM the administrative judge’s finding that
the appellant engaged in protected activity under 5 U.S.C. § 2302(b)(9), but we
VACATE his finding that the appellant made a protected disclosure under
5 U.S.C. § 2302(b)(8). We also VACATE the finding that the appellant did not
prove that her protected activity was a contributing factor in her 2021
performance evaluation, WIGI denial, and placement in a nonduty status for
4 months pending the outcome of a misconduct investigation. We REMAND the
case to the Denver Field Office for further adjudication in accordance with this
Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2On review, the appellant challenges nearly all of the administrative judge’s
factual and credibility findings, and she asserts that the initial decision should be
reversed in its entirety. Stewart v. Department of Agriculture , MSPB Docket No.
2 Pursuant to a May 17, 2023 notice issued by the Office of the Clerk of the Board, the
above-referenced docket numbers were joined for processing on petition for review.
Petition for Review File, Tab 3 at 1; see 5 C.F.R. § 1201.36(a)(2). We find that joinder
is appropriate here because it will expedite the processing of these appeals and will not
adversely affect the interests of the parties. 2
DE-531D-22-0164-I-2, Petition for Review (PFR) File, Tabs 1-2, 5. As a general
matter, the Board must defer to an administrative judge’s credibility
determinations when, as here, they are based on observing the demeanor of
witnesses at a hearing, and the Board may overturn such determinations only
when it has sufficiently sound reasons for doing so. Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We have considered the
appellant’s arguments relating to credibility, and we find that she has not
established a sufficient basis for overturning the administrative judge’s credibility
findings. PFR File, Tab 1 at 16-18.
WIGI denial and affirmative defenses
¶3The appellant has not made any specific challenges to the administrative
judge’s findings as to the merits of the WIGI denial, and we find no reason to
disturb them. Stewart v. Department of Agriculture , MSPB Docket No.
DE-531D-22-0164-I-2, Appeal File, Tab 18, Initial Decision (ID) at 13-24; PFR
File, Tabs 1-2; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997)
(holding that the Board will not disturb an administrative judge’s findings when
he considered the evidence as a whole, drew appropriate references, and made
reasoned conclusions on issues of credibility); see also Broughton v. Department
of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same).
¶4Regarding harmful procedural error, the appellant asserts, for the first time
on review, that the agency did not give her notice of her unacceptable
performance during the rating cycle, citing 5 C.F.R. § 432.104. PFR File, Tab 1
at 6-7. The Board generally will not consider an argument raised for the first
time in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016); see 5 C.F.R.
§ 1201.115(d). The appellant has not made such a showing. In any event, these
arguments are not a basis for disturbing the initial decision because section3
432.104 pertains to performance-based actions, such as removals, and not WIGI
denials. See Bowden v. Department of the Army , 59 M.S.P.R. 662, 666 n.3 (1993)
(noting that the substance of the appellant’s right under 5 C.F.R. part 531 is not to
a formal evaluation but to be put on notice that her performance has been found
inadequate so that she can work to gain her WIGI at a later date). The appellant
has provided no basis on review to disturb the administrative judge’s findings
regarding her other harmful error claims, and we therefore affirm them.3
ID at 46-48.
¶5The appellant also asserts on review, as an affirmative defense to the WIGI
denial, that the agency committed harmful procedural error by violating
the Administrative Leave Act of 2016, S.R. 114-292, 114th Cong. (2015-2016),
and 5 U.S.C. § 6329b. PFR File, Tab 1 at 7. The agency asserts that the
appellant failed to raise this argument before the administrative judge. PFR File,
Tab 4 at 15. Even if we were to find that the appellant timely raised the
argument, we find that she has not proved harmful error. The Administrative
Leave Act of 2016 was not enacted and therefore cannot form the basis of a
harmful error claim. S.R. 114-292, 114th Cong. (2015-2016). Pursuant to
5 U.S.C. § 6329b, an agency may place an employee on investigative leave,
with pay, for a maximum of 130 days. 5 U.S.C. § 6329b(b)(1)(A), (b)(3)(A), (c)
(1)-(2). At the time the appellant’s WIGI was denied on September 9, 2020,
she had been on administrative leave, pending investigation, for 44 days.
Stewart v. Department of Agriculture , MSPB Docket No. DE-531D-22-0164-I-1,
Initial Appeal File (IAF), Tab 1 at 18, Tab 55 at 133. To the extent the appellant
asserts that an improper agency official made the decision to authorize
investigative leave, PFR File, Tab 1 at 7, she has not proved that the absence or
3 On review, the appellant, without explanation, cites to 29 C.F.R. § 1691.5. PFR File,
Tab 1 at 7. This regulation pertains to procedures for addressing complaints of
discrimination filed against recipients of Federal financial assistance. 29 C.F.R.
§ 1691.1. The appellant has not established that this regulation is relevant to the issues
in this appeal.4
cure of that error would likely have caused the agency to reach a different
outcome as to the WIGI denial. See 5 C.F.R. § 1201.4(r).
¶6On review, the appellant reasserts many of the same arguments that
she raised before the administrative judge concerning her race discrimination
affirmative defense.4 PFR File, Tab 1 at 15, 20-21. We find that the
administrative judge considered the evidence as a whole, drew appropriate
references, and made reasoned credibility findings, and we find no reason to
disturb his finding that the appellant failed to prove her race discrimination
affirmative defense by preponderant evidence. ID at 48-49; see Crosby,
74 M.S.P.R. at 106; Broughton, 33 M.S.P.R. at 359. The appellant also reasserts
on review that the agency failed to accommodate her disabilities and that the
agency retaliated against her for requesting reasonable accommodations.
PFR File, Tab 1 at 13-14. For example, the appellant asserts that the agency
failed to continue the interactive process after partially denying her reasonable
accommodation request and that it failed to offer her reassignment to a vacant
position. Id. at 13. However, the appellant has not identified any evidence
demonstrating that she notified the agency that the granted accommodations were
insufficient to accommodate her disabilities or any request for reassignment to
another position because of her disability. Id. at 13-14; see Clemens v.
Department of the Army , 120 M.S.P.R. 616, ¶ 17 (2014) (finding that
an appellant’s mere assertion that the agency could have allowed him to use
specific software was insufficient to establish his burden that an accommodation
existed and was reasonable). The appellant also asserts on review that the agency
denied her request to access the Employee Assistance Program for emergencies.
PFR File, Tab 1 at 14. This is not supported by the record. IAF, Tab 84 at 25-26.
We therefore find that the appellant has not proved that the agency denied her
4 The appellant has not made any specific challenges to the administrative judge’s
finding that she failed to prove that her sex and disability were motivating factors in the
WIGI denial. We find no reason to disturb those findings, and we therefore affirm
them. ID at 48-53.5
requested accommodations. We also agree with the administrative judge’s
finding that the appellant failed to prove that the agency retaliated against her for
requesting reasonable accommodations, and her arguments on review are
insufficient to warrant a different outcome. ID at 50-52; PFR File, Tab 1 at 14.
To the extent the appellant asserts on review that she was subjected to a hostile
work environment based on her race, disability, sex, or in retaliation for her
protected EEO activity, we find that she has not proved that her workplace was
permeated with unwelcome discriminatory intimidation, ridicule, and insult that
was sufficiently severe or pervasive to alter the conditions of employment and
create an abusive working environment. See Sabio v. Department of Veterans
Affairs, 124 M.S.P.R. 161, ¶ 31 (2017) (setting forth the standard to prove a
hostile work environment claim under Title VII).
¶7Regarding her EEO reprisal affirmative defense, the appellant asserts that
the administrative judge erred in finding that some of her disclosures were not
protected under Title VII. PFR File, Tab 1 at 7-8, 14-15. Even if we assume, for
purposes of this decision, that the appellant engaged in additional protected EEO
activity, such as that contemplated in the items enumerated 3-6, 8-10, 12, 14,
17-21, and 23 in the initial decision, we agree with the administrative judge’s
finding that the appellant failed to prove that her EEO activity was a motivating
factor in the WIGI denial. ID at 15-24, 50-52; see Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶¶ 22, 30-33 (explaining that, to be
entitled to relief in a Title VII claim, the appellant must, at a minimum, prove that
the protected activity or characteristic was a motivating factor in the personnel
action). We agree with the administrative judge’s well-reasoned analysis that the
agency’s evidence in support of its decision to deny the WIGI was extremely
strong, therefore outweighing the timing evidence and any motive to retaliate by
the responsible management official. ID at 15-24, 50-52. The agency’s
conclusion that the appellant’s performance was not acceptable in critical
element 1, which, in relevant part, required her to communicate in a forthcoming6
and respectful manner, is well supported by the record. For example, the
appellant’s statement that she wished her supervisor had better communication
skills and that she was “foolish” and “repulsive,” on its face, is inappropriate and
disrespectful, particularly in light of the appellant’s position as a human resources
branch chief. IAF, Tab 100 at 29-30. In fact, the appellant’s email prompted a
complaint from her subordinate employee, referring the appellant’s “toxic
behavior.” Id. at 29. We therefore agree that the appellant has not proved that
her EEO activity was a motivating factor in the agency’s decision to deny her
WIGI.5
IRA claims and whistleblower reprisal affirmative defense
¶8As to the appellant’s IRA claims and whistleblower affirmative defense, she
disagrees, on review, with the administrative judge’s analysis of the protected
disclosures and personnel actions6 and his findings on contributing factor. First,
we address the appellant’s arguments concerning the protected disclosures. The
appellant asserts on review that item 9, which concerns a purported
communication with Congress, is protected under 5 U.S.C. § 2302(b)(8)(C).
PFR File, Tab 1 at 20. Although the communication itself is not in the record,
some evidence suggests that the communication concerned sexual harassment of a
5 To the extent the appellant asserts on review that the agency retaliated against her for
engaging in protected EEO activity by issuing a letter of reprimand and lowering her
performance rating, PFR File, Tab 1 at 8, 10, the Board lacks jurisdiction over such
claims. See Brodt v. Merit Systems Protection Board , 11 F.3d 1060, 1061 (Fed. Cir.
1993) (“Prohibited personnel practices are cognizable by the Board only when they
motivate an otherwise appealable personnel action.”).
6 By analyzing the merits of the alleged protected disclosures and personnel actions
identified by the appellant, the administrative judge implicitly found that the Board has
jurisdiction over the same. ID at 38-45. We modify the initial decision to explicitly
find that the Board has jurisdiction over these issues and to find that the appellant
exhausted her claims with OSC. IAF, Tabs 13, 27; see Chambers v. Department of
Homeland Security , 2022 MSPB 8, ¶¶ 10-11 (explaining the requirements of
exhaustion); see also MaGowan v. Environmental Protection Agency , 119 M.S.P.R. 9,
¶ 5 (2012) (explaining that, in an IRA appeal, the standard for establishing jurisdiction
is a nonfrivolous allegation, whereas the standard for establishing a prima facie case on
the merits is preponderant evidence).7
junior employee by the appellant’s second-level supervisor. IAF, Tab 56 at 211.
Because allegations of sexual harassment are generally covered by
Title VII, including the disclosure at issue here, it is not protected under 5 U.S.C.
§ 2302(b)(8). See Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 10-20
(holding that allegations of discrimination in violation of Title VII cannot be
brought under whistleblower protection laws), aff’d, No. 2022-1967 (Fed. Cir.
2022). We have also considered whether item 9, along with items 12, 14, and 20,
which also concern complaints that the appellant’s second-level supervisor
sexually harassed a junior employee, are protected under 5 U.S.C. § 2302(b)(9)
(B). That section prohibits retaliation for testifying or otherwise lawfully
assisting any individual in the exercise of any an appeal, complaint, or grievance.
Id. However, there is no evidence that the junior employee filed an appeal,
complaint, or grievance, and thus, we find that the disclosures are not protected
under this section. See Edwards, 2022 MSPB 9, ¶ 28. Next, the appellant asserts
that item 2, which concerns the Deputy Director of Human Resources’ “lack of
discretion with employee files and information,” is protected under whistleblower
law. PFR File, Tab 1 at 19. However, for the reasons set forth in the initial
decision, we agree that the appellant has not proved by preponderant evidence
that the disclosure is protected under 5 U.S.C. § 2302(b)(8). ID at 26. Finally,
the appellant appears to assert that some of her disclosures should be protected
under 5 U.S.C. § 2302(b)(9)(C), which, in relevant part, prohibits retaliation for
cooperating with or disclosing information to a “component responsible for
internal investigation or review.” PFR File, Tab 1 at 10, 20. In relevant part, she
states that “agency administrators” and directors, to whom she made some of her
purported disclosures, have delegated authority from the Secretary of Agriculture
to “supervise and direct.” Id. at 10. She generally cites to 7 C.F.R. part 2. Id.
However, the appellant has not proved that these regulations establish that an8
agency administrator or director is a component responsible for internal
investigation or review, as contemplated by 5 U.S.C. § 2302(b)(9)(C).7
¶9In the initial decision, the administrative judge found that item 24, which
concerns a September 30, 2021 email sent by the appellant to the agency’s human
resources department alleging that the agency did not disclose all documents
related to her WIGI denial, was protected whistleblowing. IAF, Tab 44 at 21-22;
ID at 35-36. We disagree. The appellant has not proved by preponderant
evidence that this email demonstrates a reasonable belief that the agency violated
a law, rule, or regulation, or engaged in gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety. IAF, Tab 47 at 20; see 5 U.S.C. § 2302(b)(8). The appellant has also
not proved that the email warrants protection under 5 U.S.C. § 2302(b)(9). To the
extent she asserts that the human resources official is a component responsible for
internal investigation, as contemplated by 5 U.S.C. § 2302(b)(9)(C), we disagree
for the same reasons set forth in the preceding paragraph. We therefore reverse
the administrative judge’s finding that item 24 is protected whistleblowing.
¶10Second, we address the appellant’s arguments on review concerning the
alleged personnel actions. First, the appellant disputes the administrative judge’s
finding that she did not prove that an alleged denial of training was a personnel
action under 5 U.S.C. § 2302(a)(2)(A). PFR File, Tab 1 at 12. The
administrative judge found that the appellant did not prove that the training
would reasonably be expected to lead to an appointment, promotion,
performance evaluation, or other action listed in that section. ID at 3 n.3. The
record supports a finding that the training was unrelated to the appellant’s job
7 The appellant has not proved by preponderant evidence, or even alleged, that
she exercised an appeal, complaint, or grievance right granted by any law, rule, or
regulation with regard to remedying a violation of 5 U.S.C. § 2302(b)(8), and
therefore we find that she has not proved that her disclosures are protected by 5 U.S.C.
§ 2302(b)(9)(A). PFR File, Tab 1 at 19; see Edwards, 2022 MSPB 9, ¶¶ 24-25 (holding
that an employee who filed complaints with his agency’s EEO office about systemic
race discrimination was not protected under section 2302(b)(9)(A)(i) because he did not
seek to remedy an alleged violation of section 2302(b)(8)).9
duties, IAF, Tab 54 at 157-59, and the appellant has not pointed to any contrary
evidence on review. Next, the appellant disagrees with the administrative judge’s
finding that she did not prove that she was subjected to a significant change in
duties, responsibilities, or working conditions, as would constitute a personnel
action under 5 U.S.C. § 2302(a)(2)(A)(xii). PFR File, Tab 1 at 16. In relevant
part, she asserts that the agency subjected her to retaliatory investigations and
placed her on administrative leave without duties from July 28, 2021, through the
date of her resignation on November 19, 2021. Id.; IAF, Tab 55 at 133. We find
that the appellant’s placement in a nonduty status for nearly 4 months pursuant to
a misconduct investigation, during which time she was instructed “not to conduct
any official business nor access any [agency] work site for any reason,” IAF,
Tab 55 at 133, constitutes a significant change in duties under 5 U.S.C. § 2302(a)
(2)(A)(xii). Thus, pursuant to the broad set of circumstances in this appeal, the
July 2021 investigation, in combination with the appellant’s placement in a
nonduty status for 4 months, qualifies as a personnel action under 5 U.S.C.
§ 2302(a)(2)(a)(xii). See Sistek v. Department of Veterans Affairs , 955 F.3d 948,
955 (Fed. Cir. 2020) (explaining that a retaliatory investigation itself normally
does not qualify as a personnel action under whistleblower protection law, but it
may qualify, either on its own or as part of a broader set of circumstances, if it
rises to the level of a significant change in working conditions); see also Spivey v.
Department of Justice , 2022 MSPB 24, ¶¶ 10-11 (explaining that agency actions
that, individually or collectively, have practical and significant effects on the
overall nature and quality of an employee’s working conditions, duties, or
responsibilities will be found to constitute a personnel action covered by section
2302(a)(2)(A)(xii)).
¶11Third, we address contributing factor. The administrative judge found that
the appellant did not prove that any of the responsible management officials had
knowledge of her protected whistleblowing. ID at 37-41. We disagree. On
May 12, 2021, the appellant emailed the management officials responsible for her10
2021 performance rating, WIGI denial, and the decision to place her in a nonduty
status pending a misconduct investigation, and she stated that she had filed a
complaint with the Office of Inspector General (OIG) in September 2020. IAF,
Tab 44 at 14. She also stated that she had reported information to the Office of
Special Counsel. Id. Approximately 2 months later, the agency placed her in a
nonduty status pending the outcome of a misconduct investigation, and,
approximately 4 months later, the appellant’s supervisor issued her an
unsuccessful performance rating and denied her WIGI. IAF, Tab 1 at 18-20,
Tab 55 at 133. We therefore find that the appellant has met the knowledge/timing
test as to these personnel actions. See Easterbrook v. Department of Justice ,
85 M.S.P.R. 60, ¶ 10 (2000) (finding that a personnel action taken within
7 months of the protected disclosure satisfied the knowledge/timing test).
Accordingly, this appeal must be remanded for the administrative judge to
determine whether the agency proved by clear and convincing evidence that it
would have taken the same actions in the absence of any whistleblowing activity.8
See 5 U.S.C. § 1221(e)(1); Alarid v. Department of the Army , 122 M.S.P.R. 600,
¶¶ 13-14 (2015).
Constructive removal
¶12On review, the appellant asserts, as she did before the administrative judge,
that her resignation was involuntary because the agency placed her on extended
administrative leave pending a misconduct investigation against her. PFR File,
Tab 1 at 7, 16. However, the fact that the appellant was not physically present in
the workplace for an extended time before her resignation and, by implication,
was not regularly interacting with the individuals she accused of wrongdoing,
8 On review, the appellant asserts that her supervisor had knowledge of her 2020 OIG
complaint before issuing the 2020 letter of reprimand and the 2020 performance rating.
PFR File, Tab 1 at 10, 18. However, her citations to the record do not support such a
finding, id. (citing IAF, Tab 32 at 45, 50-58, Tab 46 at 54), and it is not the Board’s
obligation to pore through the record or to construe and make sense of allegations in an
extremely voluminous case file, Keefer v. Department of Agriculture , 92 M.S.P.R. 476,
¶ 18 n.2 (2002).11
weakens her argument that her resignation was coerced. See Axsom v.
Department of Veterans Affairs, 110 M.S.P.R. 605, ¶ 16 (2009) (holding that the
fact that the appellant was on extended leave prior to his decision to resign, and
thus had little, if any, contact with any allegedly hostile supervisors in the months
leading up to his resignation, weakened any inference that any alleged harassment
and discrimination weighed heavily in his decision). Further, to the extent the
appellant claims that her negative performance rating or the denial of a WIGI
rendered her resignation involuntary, we disagree. See Neice v. Department of
Homeland Security , 105 M.S.P.R. 211, ¶ 9 (2007) (holding that dissatisfaction
with a performance rating and an unsuccessful challenge to that rating would not
compel a reasonable person to resign). In sum, we find that the appellant did not
prove any wrongful agency action that rendered her resignation involuntary. See
Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 11 (2013) (holding that, to
establish jurisdiction over an adverse action claim, the employee must show that
she lacked a meaningful choice in the matter, and it was the agency’s wrongful
actions that deprived her of that choice).
Other matters
¶13The appellant attached nearly 100 pages of documents to her petition for
review. PFR File, Tab 1 at 32-120. However, the documents all predate the
initial decision, and, thus, they are not new. See 5 C.F.R. § 1201.115(d) (defining
new and material evidence as that which was unavailable when the record closed
despite the party’s due diligence). We therefore have not considered them. We
have also considered the appellant’s supplemental filing to her petition for
review, in which she disputes the findings in the agency’s report of investigation
concerning her EEO complaint. PFR File, Tab 2. Because the Board has made its
own independent determinations concerning the appellant’s discrimination claims
over which we have jurisdiction, we need not address her disagreement with the
agency’s findings. To the extent the appellant’s arguments dispute the12
administrative judge’s findings as to her discrimination claims, we have
considered them and find that they do not warrant a different result.
ORDER
¶14For the reasons discussed above, and because the administrative judge is in
the best position to consider the evidence and render any necessary credibility
determinations, we remand this case to the Denver Field Office for further
adjudication of the IRA appeal and whistleblower reprisal affirmative defense to
the WIGI denial, in accordance with this Remand Order. The administrative
judge shall issue a remand initial decision addressing whether the agency has
proved by clear and convincing evidence that it would have taken the same
actions, i.e., the unsuccessful 2021 performance rating and WIGI denial, and the
placement in a nonduty status pending the outcome of a misconduct investigation,
in the absence of the appellant’s protected activity. If any of the administrative
judge’s findings on remand affect his findings or conclusions as to the
constructive removal claim, he shall so state in his remand initial decision. If his
findings on remand do not affect his conclusions as to the constructive removal
claim, he may adopt his prior findings in the remand initial decision.9
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
9 Once there is a final order dismissing the appellant’s constructive adverse action
appeal for lack of jurisdiction, the agency is required, under Equal Employment
Opportunity Commission (EEOC) regulations, to reissue a notice under 29 C.F.R.
§ 1614.108(f) giving the appellant the right to elect between a hearing before an EEOC
administrative judge and an immediate final decision. See 29 C.F.R. § 1614.302(b).13 | Stewart_Christie_D_DC-0752-22-0476-I-1_DE-531D-22-0164-I-2_And_DC-1221-22-0336-W-2_Remand_Order.pdf | 2024-09-06 | CHRISTIE STEWART v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. 2, September 6, 2024 | 2 | NP |
549 | https://www.mspb.gov/decisions/nonprecedential/Engen_Michael_A_CH-0752-21-0242-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL A. ENGEN,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
CH-0752-21-0242-I-1
DATE: September 6, 2024
THIS ORDER IS NONPRECEDENTIAL1
Michael A. Engen , Duluth, Minnesota, pro se.
Justin Garrett Baker , Esquire, Saint Paul, Minnesota, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision,
which dismissed his removal appeal for lack of jurisdiction. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE the
initial decision, and REMAND the case to the Central Regional Office for further
adjudication in accordance with this Remand Order.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast,
a precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The agency employed the appellant as a WS-6 Material Handler
Supervisor, a dual-status military technician position in the agency’s 148th
Fighter Wing Logistics Readiness Squadron (LRS). Initial Appeal File (IAF),
Tab 9 at 40, 59. The appellant was also a member of the Minnesota Air National
Guard (MNANG). Id. at 60. In August 2020, the agency appointed the LRS
Operations Group Superintendent to conduct a Commander Directed Investigation
(CDI) into allegations that the appellant made sexual and degrading
gender-specific comments and participated in or created an environment that was
hostile to members of his squadron based on prohibited factors such as sex and
sexual harassment. Id. at 12-13.
Effective February 25, 2021, the agency removed the appellant based on
three charges: (1) sexual harassment involving a subordinate based on a June 8,
2020 conversation; (2) discrimination based on a prohibited consideration due to
incidents that occurred on unspecified dates; and (3) conduct unbecoming a
National Guard Bureau employee based on incidents occurring between June
2018 and June 2020. Id. at 54-59. The appellant then initiated the instant appeal
of his removal. IAF, Tab 1 at 2-3, Tab 9 at 60. One month later, the Adjutant
General of the MNANG separated the appellant from MNANG. IAF, Tab 9 at 60.
The administrative judge in the instant appeal issued a jurisdictional order.
IAF, Tab 3. She explained that the Board lacks jurisdiction to review the
separation of a dual-status technician if that separation concerned either “activity
occurring while [he was] in a military pay status” or “his fitness for duty in the
reserve components.” Id. at 2-3 (quoting 32 U.S.C. § 709(f)(4)). She ordered the
parties to file evidence and argument regarding whether the appeal was within the
Board’s jurisdiction. IAF, Tab 3 at 3, Tabs 4, 7. The appellant did not respond.
The agency argued that the Board lacks jurisdiction because “the appellant’s
misconduct partly occurred while in a military pay status” and concerned his
fitness for duty in MNANG, as evidenced by his later separation from MNANG.2
IAF, Tab 9 at 6. The administrative judge agreed with the agency and dismissed
the appeal for lack of Board jurisdiction. IAF, Tab 10, Initial Decision (ID)
at 2-5.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He argues that his removal from a dual-status technician position
was without merit, alleges that the agency committed harmful error and violated
his right to due process, and asserts that a Military Separation Review Board
largely absolved him of the alleged misconduct and recommended he be issued
lesser discipline. Id. The agency has not responded to the petition for review.
ANALYSIS
On review, the appellant does not dispute the administrative judge’s
jurisdictional findings. Nonetheless, the Board has an obligation to determine its
own jurisdiction over a particular appeal. Parrish v. Merit Systems Protection
Board, 485 F.3d 1359, 1362-63 (Fed. Cir. 2007). Therefore, although not directly
addressed in the appellant’s petition for review, we have considered whether the
Board has jurisdiction over his removal from his dual-status technician position.
The Board generally has jurisdiction over a tenured dual-status technician’s
removal unless he was removed for conduct occurring while he served in a
military pay status or as a result of his lack of fitness for duty in the reserve.
5 U.S.C. §§ 7511(a)(1), 7512(1), 7513(d); 32 U.S.C. § 709(f)(4)-(5); Dyer v.
Department of the Air Force , 971 F.3d 1377, 1382, 84 (Fed. Cir. 2020). Citing
Dyer, the administrative judge found that the Board lacks jurisdiction because the
appellant was separated from the MNANG following his removal from Federal
employment. ID at 4. We disagree. In Dyer, 971 F.3d at 1382-84, the U.S.
Court of Appeals for the Federal Circuit held that when a dual-status technician is
separated from the National Guard, his termination from dual-status employment
is required by statute and concerns fitness for duty in the reserves. Id. (citing
32 U.S.C. §§ 709(b)(2), (f)(1)(A), (f)(4)). Therefore, it concluded that, unlike a3
removal for cause, termination of dual-status employment based on the
employee’s National Guard separation is outside the Board’s jurisdiction. Id.
at 1383-84.
The instant appeal is distinguishable from Dyer because the appellant in
this case was removed from his civilian technician position based on allegations
of misconduct rather than his separation from the National Guard. IAF, Tab 9
at 48-50, 54-58. In fact, the Standard Form 50 effectuating his removal states
that the removal was “[f]or [c]ause” and lists chapter 75 as the legal authority for
the removal. Id. at 59. Further, the appellant was first removed from his civilian
employment and then separated from the National Guard. Id. at 59-60.
Therefore, his later National Guard separation logically could not serve as the
basis for his earlier removal.
The administrative judge also found that the Board lacks jurisdiction
because the appellant’s alleged misconduct occurred “partly when he was in a
military pay status.” IAF, Tab 10 at 5. As noted above, the Board lacks
jurisdiction over the removal of a dual-status technician based on conduct
occurring while he served in a military pay status. 32 U.S.C. § 709(f)(4), (g)(1).
However, the Superintendent who conducted the agency’s CDI concluded that the
appellant was in a Federal technician, as opposed to a military, status for “the
majority of the time” during which the alleged misconduct occurred. IAF, Tab 9
at 26. This included the alleged incident of June 8, 2020, which served as the
basis for one of the agency’s three charges. Id. at 48. The Superintendent’s
admission that a “majority” of the incidents occurred while the appellant was in a
Federal technician status is sufficient for the appellant to prove by preponderant
evidence that at least some of the conduct at issue in his removal occurred while
he was not in a military pay status. See Bruhn v. Department of Agriculture ,
124 M.S.P.R. 1, ¶ 10 (2016) (observing that an administrative judge may consider
the agency’s documentary submissions to the extent they support a determination
that the appellant made a nonfrivolous allegation of jurisdiction).4
As for the remaining incidents, the Superintendent could not confirm
whether the appellant was in a military pay or civilian technician status because
the witnesses he interviewed could not provide specific dates for the alleged
misconduct. Id. at 26-27. Thus, neither party may ever be in a position to know
the appellant’s status during every incident underlying the proposed removal, and
we cannot infer, as the administrative judge did, that the appellant’s alleged
misconduct occurred, in whole or in part, while he was in a military pay status.
ID at 5. Nevertheless, based on the manner in which the agency charged the
appellant’s misconduct, we cannot separate the dual-status technician conduct
from the military pay status conduct. IAF, Tab 9 at 48-49. Accordingly, we find
that the appellant met his burden to prove jurisdiction. On remand,
the administrative judge should adjudicate the merits of the appellant’s
termination and his due process and harmful error claims. PFR File, Tab 1.
ORDER
For the reasons discussed above, we VACATE the initial decision and
REMAND this case to the Central Regional Office for further adjudication in
accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Engen_Michael_A_CH-0752-21-0242-I-1_Remand_Order.pdf | 2024-09-06 | MICHAEL A. ENGEN v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. CH-0752-21-0242-I-1, September 6, 2024 | CH-0752-21-0242-I-1 | NP |
550 | https://www.mspb.gov/decisions/nonprecedential/Hunt_John_P_AT-1221-20-0674-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN PARLEY HUNT,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-1221-20-0674-W-1
DATE: September 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Parley Hunt , Bonaire, Georgia, pro se.
Biron Ross , Warner Robins, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction
without holding a hearing, finding that the appellant failed to make a nonfrivolous
allegation that he made a protected disclosure or engaged in protected activity.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
On petition for review, the appellant argues the merits of his dispute with the
agency over his position description. With his petition for review, the appellant
includes a June 25, 2020 copy of his position description with changes
electronically notated, and a copy of an August 10, 2020 email exchange with the
agency’s representative concerning settlement.2 Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
2 The Board generally will not consider evidence submitted for the first time with a
petition for review absent a showing that it was unavailable before the close of the
record below despite the party’s due diligence. Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980 ). Here, the appellant argues that he was unable to respond
to the administrative judge’s jurisdictional order because he did not receive the order
prior to the close of the record below. Petition for Review (PFR) File, Tab 1 at 5.
Nevertheless, to the extent that this newly raised evidence was previously unavailable,
the Board will not grant a petition for review absent a showing that the evidence is of
sufficient weight to warrant an outcome different from that of the initial decision. See
Spivey v. Department of Justice , 2022 MSPB 24, ¶ 15; Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980 ). As for the notated copy of his position
description, PFR File, Tab 1 at 16-34, the appellant has not explained the relevance of
this document to the material issue of whether he nonfrivolously alleged that he made a
protected disclosure or engaged in protected activity. As for the settlement emails,
id. at 6-15, the Board has long held that evidence of settlement negotiations is not
admissible for public policy reasons, i.e., to encourage compromise and settlement of
disputes. See, e.g., Wheeler v. Department of Veterans Affairs , 88 M.S.P.R. 236, ¶ 13
(2001) (citing Herbert v. Department of Transportation , 17 M.S.P.R. 62, 70 (1983 )
(finding that evidence of offers to settle and the terms of a settlement agreement are
inadmissible to demonstrate liability)).2
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
3 The essence of the appellant’s claim is that in reprisal for his protected disclosures
regarding the agency’s classification policies the agency engaged in improper acts
regarding his position description. While not addressed by the administrative judge, we
observe that the Board has held that an agency’s failure to provide a valid position
description is not a personnel action for the purposes of an IRA appeal. Mattil v.
Department of State , 118 M.S.P.R. 662, ¶ 20 (2012 ) (explaining that the failure to
provide a valid position description is not a personnel action); see Askew v. Department
of the Army, 88 M.S.P.R. 674, ¶ 24 (2001 ) (finding that the alleged denial of a desk
audit is not a personnel action); see also 5 U.S.C. § 2302(a)(2)(A).
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Hunt_John_P_AT-1221-20-0674-W-1_Final_Order.pdf | 2024-09-06 | JOHN PARLEY HUNT v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-1221-20-0674-W-1, September 6, 2024 | AT-1221-20-0674-W-1 | NP |
551 | https://www.mspb.gov/decisions/nonprecedential/Mixon_Andre_F_NY-4324-21-0070-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDRE F. MIXON,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
NY-4324-21-0070-I-1
DATE: September 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andre F. Mixon , Willingboro, New Jersey, pro se.
John G. Hollis , Esquire, Joint Base McGuire-Dix-Lakehurst, New Jersey,
for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of a nonselection for lack of jurisdiction. On petition for
review, the appellant challenges the merits of the nonselection, arguing that he
was more qualified than the selectee, and he submits what appears to be an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
excerpt of language concerning the ninth merit system principle, which provides
for protection against reprisal for whistleblower activity. Petition for Review
(PFR) File, Tabs 1-2. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
The administrative judge correctly dismissed the appellant’s appeal of his
nonselection for lack of jurisdiction after observing that the appellant withdrew
his apparent assertion that his nonselection violated the Uniformed Services
Employment and Reemployment Rights Act (USERRA) and finding that the
appellant failed to allege any of the elements to establish jurisdiction over an
individual right of action (IRA) appeal based on whistleblower reprisal or a
Veterans Employment Opportunities Act (VEOA) appeal. Initial Appeal File
(IAF), Tab 9, Initial Decision (ID) at 3-5. Absent an otherwise appealable action,
the administrative judge also correctly concluded that the Board lacked
jurisdiction over the appellant’s claim that the nonselection violated the merit
system principles. ID at 5; see Davis v. Department of Defense , 105 M.S.P.R.
604, ¶ 15 (2007) (stating that the merit system principles are not themselves a
source of Board jurisdiction, nor is a nonselection an otherwise appealable action2
with respect to which the appellant could claim that the agency’s alleged
violation of merit system principles made its decision “not in accordance with
law” as set forth in 5 U.S.C. § 7701(c)(2)(C)). The appellant’s assertions on
review provide no basis to disturb these findings. PFR File, Tabs 1-2.
Accordingly, we affirm the initial decision.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Following the appellant’s initial appeal wherein he vaguely implicated USERRA, IAF,
Tab 1 at 5, the administrative judge issued a jurisdictional order informing the appellant
how to establish Board jurisdiction over a USERRA claim, IAF, Tab 4 at 2-5. In the
initial decision, the administrative judge also explained that the Board may have
jurisdiction over the appellant’s appeal if the appellant’s claims were within the context
of an IRA appeal based on whistleblower reprisal or a VEOA appeal. ID at 3.
Generally, a failure to provide explicit information on what is required to establish an
appealable jurisdictional issue is considered error and warrants a remand of the appeal
if that error was not otherwise cured. See Burgess v. Merit Systems Protection Board ,
758 F.2d 641, 643-44 (Fed. Cir. 1985 ); Parker v. Department of Housing and Urban
Development, 106 M.S.P.R. 329, ¶ 8 (2007 ). One way to cure such an error is if the
initial decision itself contains information to put an appellant on notice of what he must
do to establish Board jurisdiction in his petition for review. Parker, 106 M.S.P.R. 329,
¶ 8. Here, the administrative judge explicitly provided the appellant with the
jurisdictional elements required in an IRA appeal based on whistleblower reprisal or a
VEOA appeal. ID at 3. Thus, the appellant had an opportunity on review to allege
those jurisdictional elements, and he failed to do so. PFR File, Tabs 1-2. Accordingly,
a remand is not necessary.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 4
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 6
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Mixon_Andre_F_NY-4324-21-0070-I-1_Final_Order.pdf | 2024-09-06 | ANDRE F. MIXON v. DEPARTMENT OF THE ARMY, MSPB Docket No. NY-4324-21-0070-I-1, September 6, 2024 | NY-4324-21-0070-I-1 | NP |
552 | https://www.mspb.gov/decisions/nonprecedential/Troise_Robert_J_CH-3443-20-0230-A-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT J. TROISE,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
CH-3443-20-0230-A-1
DATE: September 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert J. Troise , Wichita Falls, Texas, pro se.
Aaron J. Bennett , Esquire, and Bridgette M. Gibson , Dallas, Texas, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied the appellant’s motion for attorney fees as untimely by 49 days.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
In February 2020, the appellant filed an appeal challenging the agency’s
decision not to select him for a position. Troise v. Department of the Treasury ,
MSPB Docket No. CH-3443-20-0230-I-1, Initial Appeal File, Tab 1. On
March 20, 2020, the administrative judge issued an initial decision dismissing the
appeal for lack of jurisdiction. IAF, Tab 13, Initial Decision. The appellant then
filed a motion for attorney fees on August 11, 2020. Troise v. Department of the
Treasury, MSPB Docket No. CH-3443-20-0230-A-1, Attorney Fees File (AFF),
Tab 1. Because the motion for attorney fees was filed more than 60 days after the
initial decision became final on April 24, 2020,2 the administrative judge issued a
timeliness order. AFF, Tab 3. The parties discussed the timeliness issue at a
2 On September 23, 2020, the appellant filed a petition for review of the initial decision
that dismissed his appeal for lack of jurisdiction. Troise v. Department of the Treasury ,
MSPB Docket No. CH-3443-20-0230-I-1, Petition for Review File, Tab 1. Because the
petition for review was filed more than 35 days after issuance of the initial decision
without good cause shown, the Board dismissed the petition for review as untimely.
Troise v. Department of the Treasury , MSPB Docket No. CH-3443-20-0230-I-1, Final
Order (Sept. 6, 2024). Therefore, the initial decision remains the final decision of the
Board regarding the Board’s jurisdiction over the appellant’s initial appeal. 2
subsequent status conference, and the administrative judge granted the appellant
additional time to address the issue. AFF, Tab 9. Nonetheless, the appellant did
not respond to the timeliness order. Accordingly, the administrative judge issued
an initial decision dismissing the motion for attorney fees as untimely with no
good cause shown. AFF, Tab 10, Addendum Initial Decision (AID). The instant
petition for review followed.
DISCUSSION OF ARGUMENTS ON REVIEW
An appellant is entitled to attorney fees under 5 U.S.C. § 7701(g)(1) when
(1) he is the prevailing party, (2) he incurred attorney fees in connection with the
appeal, (3) the award of attorney fees is “warranted in the interest of justice,” and
(4) the fees awarded are reasonable. Allen v. U.S. Postal Service , 2 M.S.P.R. 420,
426-27 (1980). Motions for attorney fees must be filed as soon as possible but no
later than 60 calendar days after the initial decision becomes final. 5 C.F.R.
§ 1201.203(d). In the interest of judicial efficiency and fairness, the Board will
not waive its timeliness requirements in the absence of good cause shown. See
Pfeiffer v. Department of the Navy , 80 M.S.P.R. 179, 183-84 (1998), aff’d,
230 F.3d 1375 (Fed. Cir. 1999) (Table); 5 C.F.R. § 1201.12.
The administrative judge found that the initial decision became final on
April 24, 2020, and the appellant’s fee petition had to be filed by June 23, 2020.
AID at 2-3. The petition for attorney fees, which was filed on August 11, 2020,
was therefore untimely by 49 days. AID at 3. The administrative judge also
found that the appellant failed to establish good cause for the late filing. Id. The
appellant’s petition for review does not identify any basis under 5 C.F.R.
§ 1201.115 for disturbing the initial decision, and it does not address timeliness
or good cause. The appellant’s arguments regarding the merits of his case do not
establish good cause for his late filing. See Wright v. Department of the
Treasury, 113 M.S.P.R. 124, ¶ 7 (2010). We find no material error in the initial
decision, and we therefore affirm it.3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Troise_Robert_J_CH-3443-20-0230-A-1_Final_Order.pdf | 2024-09-06 | ROBERT J. TROISE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. CH-3443-20-0230-A-1, September 6, 2024 | CH-3443-20-0230-A-1 | NP |
553 | https://www.mspb.gov/decisions/nonprecedential/Troise_Robert_J_CH-3443-20-0230-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT J. TROISE,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
CH-3443-20-0230-I-1
DATE: September 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert J. Troise , Wichita Falls, Texas, pro se.
Aaron J. Bennett , Esquire, and Bridgette M. Gibson , Dallas, Texas, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
In February 2020, the appellant filed his initial appeal challenging his
nonselection for a position due to alleged suitability concerns. Initial Appeal File
(IAF), Tab 1. On March 20, 2020, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction with a finality date of
April 24, 2020. IAF, Tab 13, Initial Decision (ID) at 1, 6. The appellant filed the
instant petition for review on September 23, 2020. Petition for Review (PFR)
File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s regulations provide that a petition for review must be filed
within 35 days of the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the date of issuance,
within 30 days after the date he received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive its filing deadline only upon a showing of
good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good
cause for an untimely filing, the appellant must show that he exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201, ¶ 5 (2014). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented evidence
of the existence of circumstances beyond his control that affected his ability to
comply with the time limits or of unavoidable casualty or misfortune that
similarly shows a causal relationship to his inability to timely file his petition.
Moorman v. Department of the Army , 68 M.S.P.R. 60, 62-63 (1995), aff’d,
79 F.3d 1167 (Fed. Cir. 1996) (Table).
The appellant’s petition for review was due on or before April 24, 2020.
ID at 6; see 5 C.F.R. § 1201.114(e). It was filed approximately 5 months late, on2
September 23, 2020. PFR File, Tab 1. Applying the factors above, we find that
the appellant has failed to establish good cause for his approximately 5-month
delay in filing his petition for review. Although he is proceeding pro se, a
5-month delay is significant. See, e.g., Mashack v. U.S. Postal Service ,
96 M.S.P.R. 174, ¶ 8 (2004) (finding a 3½-month delay significant). The
appellant states that he was unable to access a library computer to file his appeal
due to the COVID-19 pandemic. PFR File, Tab 3 at 1. However, he does not
identify whether the library was closed during the entire period between March 20
and September 23, 2020, and he does not explain why he did not attempt to
submit pleadings by mail or otherwise contact the Board during this 5 -month
period. Id. Additionally, the appellant filed pleadings in another matter on
August 11, 2020, and he does not explain why he was unable to file the instant
petition for review on or about August 11, 2020. Troise v. Department of the
Treasury, MSPB Docket No. CH-3443-20-0230-A-1, Attorney Fees File, Tab 1.
The appellant’s arguments about the merits of the agency’s action are irrelevant
to the issue of the timeliness of his petition for review. PFR File, Tab 1 at 1,
Tab 3 at 1; see, e.g., Abney v. Office of Personnel Management , 89 M.S.P.R. 305,
¶ 4 (2001), aff’d, 41 F. App’x 421 (Fed. Cir. 2002). In addition, the appellant’s
general assertion that he did not know he could ask for an extension of time does
not excuse his failure to request an extension in advance of the filing date. See
Mashack, 96 M.S.P.R. 174, ¶ 9; 5 C.F.R. § 1201.114(f). The appellant therefore
failed to establish that he exercised ordinary prudence under the circumstances.
To the extent the appellant is contending that the documents he submits on
review constitute new and material evidence that would justify his untimely
filing, he fails to provide a basis for waiving the filing deadline. PFR File,
Tabs 1, 3. One of the documents the appellant submits on review was previously
submitted to the administrative judge and is not new. IAF, Tab 5 at 2; PFR File,
Tab 1 at 2; see Meier v. Department of the Interior , 3 M.S.P.R. 247, 256 (1980).
The appellant submits two documents that are dated after the issuance of the3
initial decision, including a June 18, 2020 memo from the Department of the
Army regarding its security investigation of the appellant and a September 29,
2020 letter from the Federal Emergency Management Agency (FEMA),
confirming authorization from FEMA’s security department to move forward with
the appellant’s onboarding. PFR File, Tab 1 at 3, Tab 3 at 3. The appellant did
not act diligently in bringing the June 18 memo to the Board’s attention because
he delayed filing it by more than 3 months. See Jenkins-Nye v. General Services
Administration, 34 M.S.P.R. 382, 384-85 (1987) (finding that a more than
2-month delay between discovery of alleged new evidence and filing it with the
Board did not constitute due diligence). Even if the appellant had diligently
brought the June 18 memo to the Board’s attention, the appellant’s point
regarding the document is duplicative of arguments made before the
administrative judge, i.e., that he had been given a clear background check at the
time of the nonselection, and is not relevant to the issues of timeliness or
jurisdiction. ID at 5; IAF, Tab 1 at 5, Tab 5 at 1; PFR File, Tab 1 at 1; see, e.g.,
Abney, 89 M.S.P.R. 305, ¶ 4 (holding arguments related to the merits are not
relevant to timeliness). Similarly, the September 29 email, which is dated after
the appellant filed his petition for review and concerns another agency’s job offer
to the appellant, relates to the merits of the underlying action and is not relevant
to jurisdiction or timeliness. PFR File, Tab 3 at 3; see, e.g., Abney, 89 M.S.P.R.
305, ¶ 4. Thus, the September 29 email is not new and material evidence. There
is no evidence or argument that the agency possessed these documents during the
pendency of the appeal and wrongfully withheld them from the appellant, and
thus we find no basis to waive the time limit. Cf. Armstrong v. Department of the
Treasury, 591 F.3d 1358, 1363 (Fed. Cir. 2010) (directing the Board to consider
whether an appellant diligently filed with the Board newly discovered evidence
related to his claim of fraud, which he alleged the agency wrongfully withheld).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness4
of the petition for review. The initial decision remains the final decision of the
Board regarding its jurisdiction over this appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Troise_Robert_J_CH-3443-20-0230-I-1_Final_Order.pdf | 2024-09-06 | ROBERT J. TROISE v. DEPARTMENT OF THE TREASURY, MSPB Docket No. CH-3443-20-0230-I-1, September 6, 2024 | CH-3443-20-0230-I-1 | NP |
554 | https://www.mspb.gov/decisions/nonprecedential/Barthell_NakishaSF-315H-21-0450-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NAKISHA BARTHELL,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-315H-21-0450-I-1
DATE: September 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nakisha Barthell , Elk Grove, California, pro se.
Coleen L. Welch , Martinez, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal challenging her termination while serving in a trial period
for lack of jurisdiction . For the reasons set forth below, the appellant’s petition
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
The agency appointed the appellant to a GS-6 Advanced Medical Support
Assistant position on August 16, 2020, and terminated her from that position
effective June 18, 2021. Initial Appeal File (IAF), Tab 1 at 1, 17-19, Tab 6 at 12,
241. The appellant timely filed a Board appeal challenging her termination on
July 16, 2022, and acknowledged on her appeal form that she was serving in a
probationary or trial period at the time of her termination and identified the
challenged action as a probationary or trial period termination appeal. IAF, Tab 1
at 1, 3. The administrative judge issued a jurisdictional order that informed the
appellant of her burden of proof to establish Board jurisdiction over her appeal
and instructed her to file evidence and argument establishing why the appeal
should not be dismissed for lack of jurisdiction based on her status as a
probationer. IAF, Tab 3.
The agency filed its response to the order and moved to dismiss the appeal
for lack of jurisdiction, arguing that the appellant was terminated during her
probationary period and was not otherwise an “employee” with Board appeal
rights under 5 U.S.C. § 7511(a). IAF, Tab 6 at 4-8. The appellant did not
respond to the jurisdiction order. The administrative judge subsequently issued
an order instructing the appellant to file a response to the agency’s motion to
dismiss and to include the information called for in the jurisdiction order in her
response. IAF, Tab 7. The appellant again failed to respond to the administrative
judge’s order.
Without holding the appellant’s requested hearing, IAF, Tab 1 at 2,
the administrative judge issued an initial decision dismissing the appeal for lack
of jurisdiction, IAF, Tab 8, Initial Decision (ID) at 1, 6. The administrative judge
first noted that although the agency provided the appellant with notice of appeal2
rights information for probationary employees in the competitive service,
the appellant’s appointment was in the excepted service. ID at 4.
The administrative judge concluded that as an excepted service employee without
veterans’ preference, the appellant had to establish that she was an “employee”
with Board appeal rights under 5 U.S.C. § 7511(a)(1)(C) and she did not make
such a showing in this case, noting that she was terminated while serving in a
1-year trial period and she had not provided any evidence that she had any prior
Federal service that could be credited toward completion of her trial period.
ID at 4-5. The administrative judge further concluded that the appellant failed to
establish that she had a regulatory right to appeal her termination to the Board
under 5 C.F.R. § 315.806(c). Consequently, he dismissed the appeal for lack of
jurisdiction. ID at 5-6. The initial decision was issued on August 26, 2021,
and noted that the decision would become final on September 30, 2021, unless a
petition for review was filed by that date. ID at 1, 6.
On March 29, 2022, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. The agency submitted a response in opposition to the
petition for review, and the appellant did not submit a reply. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision, or if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The Board will
waive the time limit for filing a petition for review only upon a showing of good
cause for the delay in filing. Palermo, 120 M.S.P.R. 694, ¶ 4. The party who
submits an untimely petition for review has the burden of establishing good cause
for the untimely filing by showing that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Id. To determine3
whether a party has shown good cause, the Board will consider the length of the
delay, the reasonableness of her excuse and the party’s showing of due diligence,
whether she is proceeding pro se, and whether she has presented evidence of the
existence of circumstances beyond her control that affected her ability to comply
with the time limits or of unavoidable casualty or misfortune which similarly
shows a causal relationship to her inability to timely file her petition. Id.
As previously noted, the initial decision was issued on August 26, 2021,
and so the petition for review was due by September 30, 2021. ID at 1, 6.
The appellant filed her petition for review through e-Appeal on March 29, 2022.
PFR File, Tab 1. Because the pleading was submitted after the filing deadline,
e-Appeal automatically generated questions concerning timeliness, including a
question instructing the appellant to describe the facts and circumstances related
to the untimely filing, and to provide argument as to why the Board should find
good cause for her untimeliness. Id. at 3-5. In response, the appellant stated that
she “did not have access electronically” and that she never received the
administrative judge’s orders. Id. at 3, 5. She also stated that she reached out to
agency counsel regarding her “lack of access.” Id. at 4.
The Acting Clerk of the Board issued a letter to the appellant
acknowledging her petition for review and stating that it appeared to be untimely
filed because it was not postmarked or received on or before September 30, 2021.
PFR File, Tab 3 at 1. The Acting Clerk afforded the appellant an opportunity to
file a motion to accept the filing as timely and/or to waive the time limit for good
cause, and stated that such a motion must be accompanied by a statement signed
under penalty of perjury or an affidavit, postmarked, if mailed, or sent by
facsimile on or before April 13, 2022. Id. at 1-2 (citing 5 C.F.R. § 1201.114(g)).
The Acting Clerk also enclosed a copy of a form “Motion to Accept Filing as
Timely or to Waive Time Limit” with the acknowledgment letter. Id. at 2, 7-8.
The appellant did not submit a separate sworn statement, affidavit, or offer
further explanation for her untimely petition for review.4
Regarding the appellant’s assertion that she did not have electronic access
to the pleadings in this appeal, the appellant filed her initial appeal electronically
and elected to register as an e-filer and did not revoke her designation as
an e-filer at any time during the processing of her appeal. IAF, Tab 1 at 2.
E-filers consent to accept electronic service of pleadings filed by other registered
e-filers and documents issued by the Board. 5 C.F.R. § 1201.14(e)(1) (2021).
When Board documents are issued, an email is sent to an e-filer at their email
address of record, notifying them of the issuance and providing them with a link
to e-Appeal where the documents can be viewed and downloaded. 5 C.F.R.
§ 1201.14(j)(1) (2021). E-filers are responsible for monitoring case activity at
e-Appeal to ensure that they have received all case-related documents. 5 C.F.R.
§ 1201.14(j)(3) (2021). As an e-filer, the appellant is deemed to have received
the jurisdiction order, the order instructing her to respond to the agency’s motion
to dismiss, and the initial decision when they were electronically issued on
July 19, 2021, August 11, 2021, and August 26, 2021, respectively. 5 C.F.R.
§ 1201.14(m)(2) (2021); Palermo, 120 M.S.P.R. 694, ¶ 3; IAF, Tabs 3, 7-8.
Moreover, the appellant has not provided an explanation for her late filing
despite being afforded the opportunity to do so. The appellant’s failure to
address the timeliness of her petition for review and the lack of evidence of
circumstances beyond her control or of unavoidable casualty or misfortune that
prevented her from filing a timely petition for review weigh against finding good
cause. See Cabarloc v. Department of Veterans Affairs , 112 M.S.P.R. 453,
¶¶ 9-10 (2009) (finding no good cause for the pro se appellant’s 10-day delay in
filing a petition for review when he failed to respond to the Clerk’s notice
regarding timeliness); Beckley v. U.S. Postal Service , 43 M.S.P.R. 397, 399
(1990) (noting that in the interest of judicial efficiency and fairness, regardless of
how minimal the delay, the Board will not waive its timeliness requirements in
the absence of good cause shown). Although the appellant is proceeding pro se,
her nearly 6-month filing delay is not minimal. See, e.g., Dean v. U.S. Postal5
Service, 100 M.S.P.R. 556, ¶ 5 (2005) (finding a 6-month delay was not
minimal); Floyd v. Office of Personnel Management , 95 M.S.P.R. 260, ¶ 6 (2003)
(finding a 1-month delay was not minimal).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding its dismissal for lack of jurisdiction of the appellant’s appeal
challenging her termination while serving in a trial period.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 As the administrative judge correctly noted, the appellant’s appointment was in the
excepted service. ID at 4-5. As such, the appellant was not entitled to the procedural
protections of 5 C.F.R. § 315.805 and so the administrative judge did not need to
consider whether the appellant had a regulatory right to appeal her termination to the
Board under 5 C.F.R. § 315.806(c). See Mancha v. Department of Homeland Security ,
112 M.S.P.R. 216, ¶ 10 (2009); Barrand v. Department of Veterans Affairs ,
112 M.S.P.R. 210, ¶ 13 (2009). Nevertheless, any error in this misstatement was
harmless and did not affect the outcome of the decision. See Panter v. Department of
the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that was
not prejudicial to a party’s substantive rights provided no basis for reversal of an initial
decision).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to 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. 7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Barthell_NakishaSF-315H-21-0450-I-1_Final_Order.pdf | 2024-09-06 | NAKISHA BARTHELL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-315H-21-0450-I-1, September 6, 2024 | SF-315H-21-0450-I-1 | NP |
555 | https://www.mspb.gov/decisions/nonprecedential/Muhleisen_ShirleyDE-3443-20-0189-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHIRLEY MUHLEISEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-3443-20-0189-I-1
DATE: September 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shirley Muhleisen , Marrero, Louisiana, pro se.
LaTasha C. Clark , Jackson, Mississippi, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal, which alleged that the agency separated her from service in
1999 by early retirement rather than her preferred resignation, for lack of
jurisdiction. On review, the appellant presents a number of arguments on topics
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
ranging from the nature of her separation in 1999 to ones concerning her prior
appeals with the Board and Federal courts, but none that specifically address the
jurisdictional limitation identified in the initial decision. Petition for Review
(PFR) File, Tab 1.2 Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Long after her petition, the appellant requested permission to submit additional
argument or evidence about her retirement. PFR File, Tab 6. That request is denied.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Muhleisen_ShirleyDE-3443-20-0189-I-1_Final_Order.pdf | 2024-09-06 | SHIRLEY MUHLEISEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-3443-20-0189-I-1, September 6, 2024 | DE-3443-20-0189-I-1 | NP |
556 | https://www.mspb.gov/decisions/nonprecedential/Vann_Vicki_M_SF-0714-19-0683-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VICKI M. VANN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-19-0683-I-1
DATE: September 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vicki M. Vann , Victorville, California, pro se.
Mickel-Ange Eveillard , Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member *
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision,
which sustained the appellant’s removal. For the reasons set forth below,
the appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e)-(g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
Under the authority of 38 U.S.C. § 714, the agency removed the appellant
from her position as a GS-09 Administrative Officer effective September 6, 2019.
Initial Appeal File (IAF), Tab 4 at 13, 15. She filed a timely appeal of her
removal to the Board. IAF, Tab 1. After holding a hearing, the administrative
judge issued an initial decision affirming her removal. IAF, Tab 23,
Initial Decision (ID) at 23-24. The decision was issued on December 2, 2019,
and informed the appellant that any petition for review must be filed by
January 6, 2020. ID at 24.
On January 6, 2020, via e-Appeal, the appellant filed a notice directed “to
the agency and attorney of record,” in which she stated that she “wholeheartedly
disagree[d]” with the administrative judge’s decision but was “unable to proceed
with this MSPB Appeal or Petition for Review due lack of financial resources for
legal counsel.” Petition for Review (PFR) File, Tab 1 at 4. On January 22, 2020,
the Office of the Clerk of the Board (Clerk’s Office) issued a notice to the
appellant requesting that she respond by February 6, 2020, if she wanted it to
consider her correspondence a petition for review. PFR File, Tab 2 at 1. The
Clerk’s Office stated that it had attempted to contact the appellant three times by
telephone and twice by email to determine the intent of her submission. Id. The
notice, as well as the initial decision, also provided a “Notice Regarding Lack of
Quorum,” advising the appellant that the lack of a quorum did not serve to extend
the time limit for filing a petition for review. Id. at 2; ID at 25.
The appellant did not contact the Board until May 18, 2022, when she filed
an “initial appeal” via e-Appeal, which was dismissed by the Denver Field Office
and referred to the Clerk’s Office for docketing as a petition for review of the
December 2, 2019 initial decision. Vann v. Department of Veterans Affairs ,
MSPB Docket No. SF-3443-22-0388-I-1, Initial Appeal File, Tabs 1, 5-6;
PFR File, Tab 4 at 1. The Clerk’s Office acknowledged the filing date as
May 18, 2022, and advised the appellant that her petition was untimely filed2
because it was not received by January 6, 2020. PFR File, Tab 4 at 1-2.
In response, the appellant has filed a motion requesting that the Board waive the
deadline for filing her petition for good cause. PFR File, Tab 5 at 4-5.2
DISCUSSION OF ARGUMENTS ON REVIEW
In her timeliness motion, the appellant refers back to her statements in her
January 6, 2020 correspondence and argues that she was not aware that she could
ask for an extension of time to file a petition for review. Id. She also states that
she had intermittent internet service due to financial hardship and did not receive
emails from the Clerk’s Office in a timely manner, and that she “did not receive
any regular mail from the [Clerk].” Id. at 4. She alleges that, based on the lack
of quorum, she concluded that she “did not have any ability to get [her] file to the
MSPB for [p]etition for [r]eview.” Id.
The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of issuance of the initial decision or, if the party
shows she received the initial decision more than 5 days after it was issued,
within 30 days of her receipt of the decision. 5 C.F.R. § 1201.114(e). The Board
will waive the filing deadline for a petition for review only upon a showing of
good cause for the untimely filing. Palermo v. Department of the Navy ,
120 M.S.P.R. 694, ¶ 4 (2014); 5 C.F.R. § 1201.114(g). The party who submits
an untimely petition for review has the burden of establishing good cause for the
untimely filing by showing that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4.
To determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of her excuse and the party’s showing of
2 The appellant also filed a motion for leave to submit an additional pleading, in which
she seeks to file an additional pleading that will “substantiate ongoing harassment and
defamation by the Agency” and “highlight the Agency’s recent attempts to obstruct the
Federal Service Employment career with a Service Computation Date (SCD) on or
about 2003.” PFR File, Tab 7. We deny the appellant’s motion, as the pleading she
seeks to submit would not address the timeliness of her petition. 3
due diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
that similarly shows a causal relationship to her inability to timely file her
petition. Id.
We find that the appellant has not demonstrated the diligence or ordinary
prudence necessary to establish good cause. An appellant has a personal duty to
monitor the progress of her appeal and ensure that it is timely filed. See Miller v.
Department of Homeland Security , 110 M.S.P.R. 258, ¶¶ 13-14 (2008); 5 C.F.R.
§ 1201.14(j)(3) (2020). If she intended to file a petition for review on January 6,
2020,3 she did not diligently monitor her appeal to ensure receipt of notices such
as the Clerk’s Office’s January 22, 2020 notice to clarify her pleading. To the
extent that she had “intermittent” internet service, she failed to take steps to
withdraw as an e-filer and ensure service of such documents by other means.
PFR File, Tab 5 at 4-5; see 5 C.F.R. § 1201.14(e)(4), (j)(3) (2020). We consider
her delay of over 2 years in filing her petition for review to be lengthy. See, e.g.,
Williams v. Office of Personnel Management , 109 M.S.P.R. 237, ¶ 9 (2008).
Although she alleges a mistaken assumption regarding the effect of the Board’s
lack of quorum, we note that both the initial decision and the January 22, 2020
notice from the Clerk’s Office provided straightforward instructions for filing a
petition for review and a notice that the lack of quorum did not serve to extend
the time limit for filing. PFR File, Tab 2 at 2, Tab 5 at 4-5; ID at 25. We have
considered that the appellant is pro se; however, her failure to follow the
straightforward instructions in the initial decision does not show due diligence
despite her pro se status. See Williams, 109 M.S.P.R. 237, ¶ 9. Furthermore, we
find that her argument that she could not afford legal counsel does not establish
3 Her attempt to initiate a new Board proceeding in May 2022 seems inconsistent with
holding a reasonable belief that she had an active petition for review already pending
since January 2020 that was just awaiting restoration of a quorum. PFR File, Tab 5 at 4
(stating that she filed in May 2022 upon hearing of the restored Board quorum).4
good cause for her lengthy delay under the circumstances of this case. See, e.g.,
Uson v. Office of Personnel Management , 105 M.S.P.R. 402, ¶ 5, aff’d, 250
F. App’x 326 (Fed. Cir. 2007) ; Depierro v. U.S. Postal Service , 54 M.S.P.R. 251,
253 (1992).
We acknowledge the decisions in Connor v. Department of Veterans
Affairs, 8 F.4th 1319 (Fed. Cir. 2021), and Rodriguez v. Department of Veterans
Affairs, 8 F.4th 1290 (Fed. Cir. 2021), issued on August 12, 2021, approximately
1 ½ years after the initial decision in this case and 9 months prior to the
appellant’s untimely petition for review. These cases pertain to the Board’s
review of actions taken by the Department of Veterans Affairs under 38 U.S.C.
§ 714. The appellant is not arguing good cause based on these or any other
precedent. PFR File, Tabs 3, 5. In any event, 9 months is a significant delay
between the issuance of these decisions and the filing of her petition for review.
We find that the issuance of new precedent after the expiration of the time period
for filing a petition for review does not establish good cause for waiver of the
time limit here. See, e.g., Olson v. Department of Agriculture , 91 M.S.P.R. 525,
¶ 6 (2002); Deem v. Office of Personnel Management , 58 M.S.P.R. 468,
470 (1993).
Accordingly, we dismiss the petition for review as untimely filed without
good cause shown for the delay. This is the final decision of the Merit Systems
Protection Board regarding the timeliness of the petition for review. The initial
decision remains the final decision of the Board regarding the appellant’s
removal.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Vann_Vicki_M_SF-0714-19-0683-I-1_Final_Order.pdf | 2024-09-06 | VICKI M. VANN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-19-0683-I-1, September 6, 2024 | SF-0714-19-0683-I-1 | NP |
557 | https://www.mspb.gov/decisions/nonprecedential/Barreto_MissaelDA-844E-21-0189-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MISSAEL BARRETO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-844E-21-0189-I-1
DATE: September 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Missael Barreto , College Station, Texas, pro se.
Shaquita Stockes and Heather Dowie , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal of the final decision of the Office of
Personnel Management (OPM) dismissing his application for disability
retirement. On petition for review, the appellant disputes the reasons for the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
dismissal of his appeal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
2 If the appellant is dissatisfied with any subsequent OPM decision regarding his
disability retirement benefits, he may request that OPM reconsider the decision and, if
he is still dissatisfied, he may appeal OPM’s final decision to the Board. See 5 U.S.C.
§ 8461(e)(1); 5 C.F.R. § 841.308. Any future appeal must be filed within the time limit
set forth in the Board’s regulations. See 5 C.F.R. § 1201.22.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Barreto_MissaelDA-844E-21-0189-I-1_Final_Order.pdf | 2024-09-06 | MISSAEL BARRETO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-844E-21-0189-I-1, September 6, 2024 | DA-844E-21-0189-I-1 | NP |
558 | https://www.mspb.gov/decisions/nonprecedential/Ndembe_TrinaAT-3443-21-0353-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRINA NDEMBE,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-3443-21-0353-I-1
DATE: September 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rockman Bentumo , Lawrenceville, Georgia, for the appellant.
Managing Counsel , Memphis, Tennessee, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. On petition for review, the
appellant argues that the administrative judge erred in failing to resolve her claim
that the agency violated her right to due process. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to address the appellant’s due process claim, we AFFIRM the initial
decision.
It is well established that the Board has no jurisdiction to review
constitutional claims that are not coupled with an independently appealable
action. Smith v. Department of Defense , 106 M.S.P.R. 228, ¶ 13 (2007). Thus,
for the Board to have jurisdiction over the appellant’s claimed due process
violation, she must first show that the Board has been authorized by law, rule, or
regulation to review her nonselection. As discussed in the initial decision, the
appellant failed to make that showing. Accordingly, we affirm the initial decision
as modified, still dismissing the appeal for lack of jurisdiction. 2
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Ndembe_TrinaAT-3443-21-0353-I-1_Final_Order.pdf | 2024-09-06 | TRINA NDEMBE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-3443-21-0353-I-1, September 6, 2024 | AT-3443-21-0353-I-1 | NP |
559 | https://www.mspb.gov/decisions/nonprecedential/Alford_LeroyDC-1221-19-0754-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEROY ALFORD,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-1221-19-0754-W-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Leroy Alford , Temple Hills, Maryland, pro se.
Nadia K. Pluta , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
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).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to clarify the basis for the Board’s
dismissal of this appeal for lack of jurisdiction, we AFFIRM the initial decision.
BACKGROUND
The appellant filed an IRA appeal in which he appeared to allege that the
Office of Personnel Management (OPM) had improperly collected $1,600 from
his retirement annuity during the pendency of, and in retaliation for, an appeal he
had earlier filed with the Board challenging OPM’s determination that he was
overpaid in his annuity. Initial Appeal File (IAF), Tab 1. In that prior appeal, the
administrative judge affirmed OPM’s reconsideration decision, finding that OPM
properly determined the existence and amount of the overpayment and that the
appellant had not shown that recovery of the overpayment was against equity and
good conscience. Alford v. Office of Personnel Management , MSPB Docket
No. DC-0845-17-0207-I-3, Initial Appeal File, Tab 27, Initial Decision at 6-10.
The appellant filed a petition for review, and the Board has affirmed that initial
decision. Alford v. Office of Personnel Management , MSPB Docket No. DC-
0845-17-0207-I-3, Final Order (June 17, 2024).2
With his current appeal, the appellant has submitted a copy of his OSC
complaint and OSC’s closure letter. IAF, Tab 1 at 8-13. In his initial decision
dismissing the appeal for lack of jurisdiction, the administrative judge relied on
Guzman v. Office of Personnel Management , 53 F. App’x 927 (Fed. Cir. 2002), an
unpublished decision of the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) dismissing the appellant’s IRA appeal on the basis that both the
alleged protected disclosure and the alleged retaliatory action occurred after
Ms. Guzman had left Federal employment. IAF, Tab 27, Initial Decision (ID)
at 1, 3-4. The administrative judge found that, because the appellant’s alleged
protected disclosures were made in 2017 and 2019, and the alleged retaliation
occurred in the same time frame, and because he retired under the Federal
Employees’ Retirement System effective July 17, 2013, and was not seeking
Federal employment at the time he made the alleged protected disclosures, he had
no cause of action under the Whistleblower Protection Act (WPA). Id.
The appellant has filed a petition for review (PFR), PFR File, Tab 3, to
which the agency has responded in opposition, PFR File, Tab 5.
ANALYSIS
Following the issuance of the initial decision, the Board issued Abernathy
v. Department of the Army , 2022 MSPB 37, in which it considered whether
disclosures made when an individual is neither a Federal employee nor an
applicant for Federal employment are protected under the WPA. After requesting
and considering amicus briefs on this question, the Board found no reason to
overrule its precedent regarding this issue. Under that precedent, an appellant's
disclosures are not excluded from whistleblower protection simply because he
was neither a Federal employee nor an applicant for employment when he made
them.2 See Weed v. Social Security Administration , 113 M.S.P.R. 221, ¶¶ 8-12
2 The Board in Abernathy observed that its precedent on this issue appeared to conflict
with some nonprecedential Federal Circuit decisions, including Guzman. Abernathy,
2022 MSPB 37, ¶ 10 n.6. It noted, however, that nonprecedential decisions of the3
(2010) (holding that, at the time of making a disclosure, an individual need not be
an employee or applicant for employment at the agency that took the alleged
retaliatory action in order to qualify for protection under the WPA as a
whistleblower); Greenup v. Department of Agriculture , 106 M.S.P.R. 202, ¶¶ 8-9
(2007) (finding that the Board had jurisdiction over an appellant's claim that the
agency failed to select her for a position in retaliation for disclosures she made
when she was neither an employee nor an applicant). Thus, to the extent the
administrative judge found that the appellant’s disclosures are excluded from
whistleblower protection because he was neither an employee nor an applicant for
employment at the time he made them, we disagree and modify the initial
decision accordingly.
Nonetheless, although former employees are included among those who can
seek corrective action from the Board,3 they cannot do so for actions taken when
they were neither an employee nor an applicant for employment. See Weed,
113 M.S.P.R. 221, ¶ 11 (citing with approval the principle that a former
employee's appeal rights are limited to actions taken while they were in the status
of being an employee or applicant for employment). Section 2302(b)(8) prohibits
any employee in a position of authority from taking, failing to take, or threatening
to take “a personnel action with respect to any employee or applicant .” 5 U.S.C.
§ 2302(b)(8) (emphasis added). Section 2302(b)(9) similarly prohibits personnel
actions taken “against any employee or applicant ” because of certain classes of
protected activity. 5 U.S.C. § 2302(b)(9) (emphasis added). Therefore, we agree
Federal Circuit are not binding on the Board, and that it is possible that the Board’s
decision in such a case would not be reviewed by the Federal Circuit. Id.
3 Title 5, United States Code, section 1221(a) provides, in relevant part:
[A]n employee, former employee, or applicant for employment may, with
respect to any personnel action taken, or proposed to be taken, against
such employee, former employee, or applicant for employment, as a result
of a prohibited personnel practice described in section 2302(b)(8) or
section 2302(b)(9)(A)(i), (B), (C), or (D), seek corrective action from the
Merit Systems Protection Board.4
with the administrative judge that the appellant cannot seek corrective action for
an alleged personnel action that occurred after he was no longer a Federal
employee.4 Thus, we affirm the initial decision as modified to find that, because
the appellant was neither an employee nor an applicant when OPM allegedly
retaliated against him, his IRA appeal is properly dismissed.
NOTICE OF APPEAL RIGHTS5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
4 The National Defense Authorization Act for Fiscal Year 2018 (NDAA for 2018),
Pub L. No. 115-91, 131 Stat. 1283, was signed into law on December 12, 2017. The
NDAA for 2018 amended 5 U.S.C. § 2302(f)(1) to provide that a disclosure shall not be
excluded from protection under 5 U.S.C. § 2302(b)(8) because it was made before the
individual's appointment or application for employment. NDAA for 2018, § 1097(c)(1)
(B)(i), 131 Stat. at 1618 (codified at 5 U.S.C. § 2302(f)(1)(F)). This provision does not
affect the analysis of the whistleblower reprisal claim in this appeal, as both the alleged
protected disclosures and the agency's alleged retaliatory acts occurred after the
appellants’ employment had ended.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: _____________________ _________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Alford_LeroyDC-1221-19-0754-W-1_Final_Order.pdf | 2024-09-05 | LEROY ALFORD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-1221-19-0754-W-1, September 5, 2024 | DC-1221-19-0754-W-1 | NP |
560 | https://www.mspb.gov/decisions/nonprecedential/Schmitt_JosephSF-0714-18-0121-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH SCHMITT,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-0714-18-0121-X-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joseph Schmitt , Reno, Nevada, pro se.
Clifford Speakman , Albuquerque, New Mexico, for the agency.
Steven R. Snortland , Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1This case is before the Board pursuant to a November 17, 2023 compliance
initial decision finding the agency in noncompliance with the Board’s
December 12, 2022 Final Order. Schmitt v. Department of Veterans Affairs ,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
MSPB Docket No. SF-0714-18-0121-C-1, Compliance File (CF), Tab 8,
Compliance Initial Decision (CID); Schmitt v. Department of Veterans Affairs ,
2022 MSPB 40. For the reasons set forth below, we find the agency in
compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
¶2On December 12, 2022, the Board issued a Final Order affirming the
reversal of the appellant’s removal and directing the agency to cancel the
appellant’s removal and restore him to his position effective November 28, 2017.
Schmitt, 2022 MSPB 40, ¶ 28. The Board also ordered that the agency pay the
appellant the correct amount of back pay, interest on the back pay, and other
benefits. Id.
¶3On June 8, 2023, the appellant filed a petition for enforcement alleging that
the agency had not provided him with back pay. CF, Tab 1 at 4-6.
On November 17, 2023, the administrative judge issued a compliance initial
decision finding the agency in noncompliance and ordering the agency to pay the
appellant the appropriate amount of back pay, interest on the back pay, and
benefits from November 28, 2017, until the appellant’s resignation on April 17,
2018. CID at 2, 6.
¶4On December 8, 2023, pursuant to 5 C.F.R. § 1201.183(a)(6)(i), the agency
filed a statement of compliance, which calculated the appellant’s net back pay to
equal $33,669.12, and provided his record of leave data. Schmitt v. Department
of Veterans Affairs , MSPB Docket No. SF-0714-18-0121-X-1, Compliance
Referral File (CRF), Tab 1 at 2-5. Neither party filed a petition for review of the
compliance initial decision.
¶5On December 18, 2023, the Clerk of the Board issued an acknowledgement
order noting the agency’s filing and informing the appellant that he must file any
response within 20 calendar days. CRF, Tab 2 at 1-2. The order specifically2
informed the appellant that if he failed to file a response, the Board might assume
he was satisfied and dismiss the petition for enforcement. Id.
¶6On January 2, 2024, the agency filed a Supplemental Submission on
Compliance, which included settlement data from the Defense Finance and
Accounting Service (DFAS) setting forth: (1) the appellant’s back pay
calculations; (2) a remedy ticket, which included the appellant’s gross back pay,
interest, and deductions withheld, for a net total of $33,669.12; (3) records of the
appellant’s leave; and (4) a back pay computation summary report, which
included the amounts of interest on the back pay. CRF, Tab 3.
¶7On February 28, 2024, the Office of the Clerk of the Board issued an order
directing the appellant to file a response to the agency’s pleading within 21 days
of the order, or the Board would assume he was satisfied and dismiss the petition
for enforcement. CRF, Tab 6 at 2.
¶8On March 20, 2024, the appellant filed a response to the agency’s
submissions. CRF, Tab 7. He noted that he had he received the agency’s
payment on December 12, 2023; however, he alleged that the agency “was
directed to compensate the Appellant with back pay amounting to $39,998.52,”
but underpaid him by $6,410.68; that the total interest owed him “as of July 18,
2018” was $9,240.23, but the agency overpaid him by $1,556.09; and that he
received $2,769.79 for his annual leave lump sum, which was an underpayment of
$1,151.57. Id. at 4-5. The appellant also contended that the agency’s filing did
not contain a comprehensive breakdown of the payments and a detailed account of
the calculations involved. Id. at 5.
¶9On April 5, 2024, the agency filed a supplemental submission addressing
the appellant’s arguments. CRF, Tab 8. It submitted a narrative explanation of
its calculations by the Executive Director of the Financial Services Center in the
Department of Veterans Affairs; DFAS settlement spreadsheets that break down
the appellant’s earnings by pay period for 2017 and 2018; evidence explaining the
calculations, including the DFAS remedy ticket that detailed the appellant’s3
earnings, deductions, and interest, and back pay summary computations regarding
the accrual of interest; and provided evidence and argument showing that it
otherwise complied with the compliance initial decision. Id. The appellant did
not file a response.
ANALYSIS
¶10The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management , 115 M.S.P.R. 65, ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal
Service, 70 M.S.P.R. 438, 443 (1996). The appellant may rebut the agency’s
evidence of compliance by making “specific, nonconclusory, and supported
assertions of continued noncompliance.” Brown v. Office of Personnel
Management, 113 M.S.P.R. 325, ¶ 5 (2010).
¶11In the agency’s most recent filing on April 5, 2024, it provided evidence
and argument that it had paid the appellant the correct amount of back pay,
interest on the back pay, and other benefits. Specifically, the agency submitted
evidence detailing the calculation of the appellant’s back pay in the form of a
narrative statement from the Executive Director of the Financial Services Center
explaining the agency’s methodology in calculating the amounts owed to the
appellant. CRF, Tab 8 at 8-11. The agency also submitted DFAS’s settlement
statements breaking down his back pay by pay period for 2017 and 2018, and the
appellant’s DFAS remedy ticket, which listed a back pay payment in the gross
amount of $33,587.84, with interest of $10,976.32, and a lump sum annual leave
amount of $5,084.31 (minus a leave debt of $2,314.52, which had been paid at the
time of appellant’s removal), as well as certain deductions for his retirement
benefits and taxes, resulting in a net payment of $33,669.12. CRF, Tab 8 at 13-
17. 4
¶12The appellant has not responded to the agency’s April 5, 2024 filing. In his
March 24, 2024 submission, he provided alternative amounts for the back pay,
interest on the back pay, and benefits but did not identify any specific errors in
the agency’s calculations or explain or otherwise support his calculations with
evidence. CRF, Tab 7. We find that the agency’s detailed explanation of its
calculations, supported by documentary evidence, suffices to meet its burden to
prove that it has complied with the compliance initial decision, particularly in
light of the appellant’s failure to respond and his prior failure to explain why he
believed the agency’s calculations were incorrect.
¶13In light of the foregoing, we find that the agency is now in compliance and
DISMISS the appellant’s petition for enforcement. This is the final decision of
the Merit Systems Protection Board in this compliance proceeding. Title 5 of the
Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Schmitt_JosephSF-0714-18-0121-X-1_Final_Order.pdf | 2024-09-05 | JOSEPH SCHMITT v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-18-0121-X-1, September 5, 2024 | SF-0714-18-0121-X-1 | NP |
561 | https://www.mspb.gov/decisions/nonprecedential/Montgomery_Darcy_A_DE-0714-17-0434-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DARCY A. MONTGOMERY,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0714-17-0434-I-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Darcy A. Montgomery , Grand Junction, Colorado, pro se.
Kacy Coble , Esquire, and Tijuana Griffin , North Little Rock, Arkansas, for
the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as settled. 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).
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2On November 22, 2017, the parties filed with the Board a fully executed
settlement agreement regarding the appellant’s removal. Initial Appeal File
(IAF), Tab 26. The administrative judge entered the agreement into the record
for enforcement purposes and issued an initial decision dismissing the appeal as
settled, with Board enforcement, on November 30, 2017. IAF, Tab 28, Initial
Decision (ID) at 1-3. The initial decision informed the appellant that the decision
would become final on January 4, 2018, unless she filed a petition for review by
that date. ID at 3.
¶3The appellant filed a petition for review on May 21, 2023, over 5 years
later.2 Petition for Review (PFR) File, Tab 1. In her petition for review, the
appellant challenges the merits of the agency’s removal action, indicating that she
believes that a 2021 decision by the Federal Labor Relations Authority (FLRA)
may have had some impact on the validity of her 2017 removal action and
possibly the validity of the parties’ November 2017 settlement agreement.3 Id.
at 3-6. On May 23, 2023, the Office of the Clerk of the Board notified the
appellant that, because she filed her petition for review more than 35 days
following the issuance of the November 30, 2017 initial decision, it was untimely.
PFR File, Tab 2 at 1. The letter explained to the appellant that the Board’s
regulations require a petition for review that appears untimely to be accompanied
by a motion to accept the filing as timely and/or waive the time limit for good
cause along with an affidavit or signed statement made under penalty of perjury,
2 The appellant is a registered e-filer. IAF, Tab 1 at 2. Registration as an e-filer
constitutes consent to accept electronic service of documents issued by the Board.
5 C.F.R. § 1201.14(e) (2023).
3 Although the appellant was represented by an attorney below, she has indicated on
review that she is representing herself. PFR File, Tab 1 at 1, 4.2
and it set a deadline for the appellant to file such a motion and provided her with
a sample motion. Id. at 1-2, 7.
¶4The appellant subsequently filed a pleading titled notice to accept filing as
timely, declaring under penalty of perjury that the Board should set aside the
deadline for filing her petition for review for good cause. PFR File, Tab 7. She
states that there have been “significant developments since 2017 that have a
direct bearing on the circumstances surrounding” her removal. Id. at 3.
Specifically, she claims that a “November 2020” FLRA decision that upheld an
arbitrator’s finding that the agency had violated a collective bargaining agreement
with the agency’s union could “potentially have an impact” on her case. Id. She
states that based on the FLRA’s decision, “it appears” that the agency’s actions in
her case “could be seen as part of a larger pattern of noncompliance” and that this
evidence supports some of her claims regarding her removal. Id. She submits a
one-page copy of literature from the agency’s union appearing to address the
FLRA’s decision. Id. at 13. The agency did not file a response to the appellant’s
petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5Generally, a petition for review must be filed within 35 days after the date
of issuance of the initial decision or, if the petitioner shows that she received the
initial decision more than 5 days after the date of issuance, within 30 days after
the date she received the initial decision. 5 C.F.R. § 1201.114(e). The Board
may waive the time limit for filing a petition for review upon a showing of good
cause for the untimely filing. 5 C.F.R. § 1201.114(g). To establish good cause,
the appellant must show that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 4 (2014). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of her excuse and her showing of due diligence, whether she is3
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control that affected her ability to comply with the time
limit or of unavoidable casualty or misfortune which similarly shows a causal
relationship to her inability to timely file her petition. Id. The Board should
specifically consider the “‘length of delay’ in every good cause determination.”
Walls v. Merit Systems Protection Board , 29 F.3d 1578, 1582 (Fed. Cir. 1994).
¶6In this case, the administrative judge informed the appellant that the initial
decision would become final on January 4, 2018, unless a petition for review was
filed by that date. ID at 3. The appellant electronically filed her petition for
review on May 21, 2023. PFR File, Tab 1. It was therefore more than 5 years
and 4 months late. The Board has previously found a delay of more than 1 month
to be significant, despite the appellant’s pro se status. See, e.g., Dow v.
Department of Homeland Security , 109 M.S.P.R. 633, ¶ 8 (2008). Although the
appellant’s pleading emphasizes that she believes that the FLRA’s decision may
have some bearing on the validity of the agency’s removal action, or potentially
her November 2017 settlement agreement, she does not discuss why she waited
several years after the FLRA’s decision to file a petition for review with the
Board. PFR File, Tab 7 at 3; see 5 C.F.R. § 1201.114(g) (providing that an
affidavit or sworn statement submitted with a motion that shows good cause for
an untimely filing must include the reasons for failing to request an extension
before the deadline for the submission, and a specific and detailed description of
the circumstances causing the late filing, accompanied by supporting
documentation or other evidence). As a result, her pleading is insufficient to
demonstrate good cause for her filing delay.
¶7Additionally, we note that considering the appellant’s statements in her
petition for review, we find that she has not established good cause for the delay
in filing her petition for review. PFR File, Tab 1. The appellant indicated that
she did not learn of the FLRA’s decision “immediately.” Id. at 5. However, the
appellant also stated that her former attorney denied her “review request years4
ago when [she] brought this matter to [the attorney’s] attention,” explaining that
the former attorney had informed the appellant that she “was not included” in the
FLRA’s decision and suggested to her that she get another attorney if she wanted
to pursue the matter. Id. at 4. To this end, the appellant alleges that she reached
out to request legal guidance “through the years” but was unsuccessful, and she
also notes that she is “not even sure” this is the correct venue for her request. Id.
at 4.
¶8Despite the appellant’s unsuccessful attempts to secure legal assistance with
her petition for review, the Board has held that a lack of representation or an
appellant’s inability to obtain representation does not establish good cause to
excuse an untimely petition for review. McCoy v. U.S. Postal Service ,
112 M.S.P.R. 256, ¶ 8 (2009), aff’d, 360 F. App’x 132 (Fed. Cir. 2010).
Additionally, the appellant’s confusion over how to subsequently pursue review
of her Board appeal, after her former attorney indicated that they would not
pursue the matter for her, also does not establish good cause for her filing delay.
See Sumrall v. Department of the Air Force , 85 M.S.P.R. 597, ¶ 13 (2000)
(finding that an appellant’s lack of sophistication in Board matters and general
inability to understand instructions and procedures is insufficient to show good
cause for a filing delay); Wallace v. Department of Veterans Affairs , 81 M.S.P.R.
88, ¶ 5 (stating that the appellant’s inexperience with legal matters and
unfamiliarity with Board procedures does not warrant waiver of the filing
deadline), aff’d, 217 F.3d 856 (Fed. Cir. 1999) (Table). The appellant here
ultimately remained personally responsible for the prosecution of her appeal. See
Barbour v. Defense Logistics Agency , 29 M.S.P.R. 570, 571 (1986).
¶9We note that, in a few cases, the Board has cited intervening legal precedent
as good cause for an untimely filed petition for review. McClenning v.
Department of the Army , 2022 MSPB 3, ¶ 12. However, here, even had the
appellant sufficiently explained the FLRA decision to which she refers, and how
it affected her appeal, or even if that decision changed the law or circumstances5
in a manner that could have impacted the adjudication of her case or her 2017
settlement agreement, we find that the appellant failed to demonstrate that she
exercised due diligence regarding her case, which cuts against reopening her
appeal. Alonzo, 4 M.S.P.R. at 184. Furthermore, the appellant has not shown that
the settlement agreement is unlawful, or tainted by fraud, coercion, or mutual
mistake. See Henson v. Department of the Treasury , 86 M.S.P.R. 221, ¶ 5 (2000).
¶10Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board.
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
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 court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you7
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 8
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited 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
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 Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Montgomery_Darcy_A_DE-0714-17-0434-I-1_Final_Order.pdf | 2024-09-05 | DARCY A. MONTGOMERY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0714-17-0434-I-1, September 5, 2024 | DE-0714-17-0434-I-1 | NP |
562 | https://www.mspb.gov/decisions/nonprecedential/Ringold_Joy_A_DE-1221-17-0046-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOY A. RINGOLD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-1221-17-0046-W-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
John Durishan , Esquire, Atlanta, Georgia, for the appellant.
Alfred Steinmetz , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied corrective action in this individual right of action (IRA) appeal.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant failed to prove contributing factor based on (1) the
agency’s alleged perception of her as a whistleblower, (2) the content of her
disclosures, or (3) by means other than the knowledge/timing test, we AFFIRM
the initial decision.
BACKGROUND
The appellant was a GS-11 Senior Veterans Services Representative in the
agency’s Phoenix Regional Benefit Office (PRBO).2 Initial Appeal File (IAF),
Tab 1 at 1, Tab 12 at 6. In January 2016, the appellant applied for one of several
vacant GS-11 Rating Veterans Service Representative positions within the PBRO,
but she was not selected. IAF, Tab 9 at 93, Tab 25 at 76-91, 169-76.
On October 31, 2016, the appellant filed an IRA appeal, alleging that her
nonselection was in retaliation for the following disclosures: (1) an August 2013
communication with her U.S. Senator’s office regarding military sexual trauma
2 The PRBO is also referred to in the record as the Pheonix Veterans Administration
Benefit Office or VARO. Initial Appeal File, Tab 8 at 136, Tab 9 at 11, Tab 10 at 93.
For the sake of consistency and simplicity, we will refer to it by the acronym PRBO in
this decision.2
(MST) issues, which resulted in a meeting among agency officials; (2) August
and September 2013 disclosures to her Senator’s office and PRBO officials that
her supervisors pressured her not to obtain additional information about MST
from claimants, despite her understanding of the agency’s duty to assist
claimants; (3) an October 18, 2013 suggestion that the agency change the notice
letters sent to claimants to include information about the relaxed standard and
types of evidence in certain MST cases; and (4) a June 8, 2014 complaint to her
U.S. Representative’s office regarding her concerns about the duty to assist
veterans. IAF, Tab 1 at 17, Tab 8 at 62-63, 72-75, 113-16, 123-25, 140. The
appellant did not request a hearing in her appeal. IAF, Tab 1 at 2.
The administrative judge issued a close-of-record order in which he found
jurisdiction over the appeal as it relates to disclosures (1) and (2).3 IAF, Tab 16
at 6-10. He found that the appellant failed to establish jurisdiction over her
remaining two disclosures because, although she exhausted them with the Office
of Special Counsel (OSC), she did not nonfrivolously allege that
disclosure (3) was protected, and did not nonfrivolously allege that disclosure (4)
was a contributing factor in her nonselection. Id. at 9-10.
After the close of the record, the administrative judge issued an initial
decision denying the appellant’s request for corrective action. IAF, Tab 21
at 2-3, Tab 32, Initial Decision (ID). He found that the appellant proved that her
disclosures to her Senator and the PRBO were protected, but that she failed to
demonstrate that they were a contributing factor in her nonselection because she
did not show that any individuals involved in the selection process had actual or
constructive knowledge of the disclosures. ID at 4-10.
3 The administrative judge treated disclosures (1) and (2) as a single disclosure. IAF,
Tab 16 at 8. To the extent that the administrative judge generally referred in the initial
decision and his orders to this combined disclosure as having been made only to the
appellant’s Senator’s staff, we clarify here that the appellant also made the same
disclosure to PRBO officials. IAF, Tab 8 at 113-14.3
The appellant has filed a petition for review, contesting the merits
determination. Petition for Review (PFR) File, Tab 1. The agency has responded
in opposition to the petition, and the appellant has replied. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant did not prove contributing factor under the knowledge/timing test.
We agree with the administrative judge that the appellant did not prove that
disclosures (1) or (2) were contributing factors in her nonselection. To prevail in
an IRA appeal, an appellant must prove by preponderant evidence that her
disclosure was a contributing factor in a personnel action. 5 U.S.C. § 1221(e)(1);
Smith v. Department of the Army , 2022 MSPB 4, ¶ 19. To prove that a disclosure
was a contributing factor in a personnel action, the appellant need only
demonstrate that the fact of, or the content of, the disclosure was one of the
factors that tended to affect the personnel action in any way. Covington v.
Department of the Interior , 2023 MSPB 5, ¶ 43. One way to establish
contributing factor is the knowledge/timing test. Smith, 2022 MSPB 4, ¶ 19. The
appellant can satisfy the test by proving that the official taking the action had
knowledge of the disclosure, and the action occurred within a period of time such
that a reasonable person could conclude that the disclosure was a contributing
factor in the personnel action. Id. The knowledge portion of the
knowledge/timing test can be met by proving either actual or constructive
knowledge. See Abernathy v. Department of the Army , 2022 MSPB 37, ¶ 15
(recognizing that an appellant can meet her burden of nonfrivolously alleging
contributing factor at the jurisdictional stage of an IRA appeal under the
knowledge/timing test based on a claim of constructive knowledge).
The appellant made disclosures (1) and (2) in August and September 2013.
IAF, Tab 8 at 113-14, 123-26. The appellant’s nonselections occurred in March
and April 2016. IAF, Tab 1 at 6 -8, 19-20, Tab 12 at 6, Tab 22 at 11. The
administrative judge found that, because the appellant’s nonselections occurred4
almost 3 years after her protected disclosure, the timing component of the
knowledge/timing test was not satisfied. ID at 8. The Board has held that
personnel actions taken within 1 to 2 years of a protected disclosure satisfy the
timing prong of the knowledge/timing test, but those that take place more than
2 years after the disclosure are too remote to satisfy this test. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 63; Agoranos v. Department of
Justice, 119 M.S.P.R. 498, ¶ 21 (2013). The parties do not dispute the
administrative judge’s determination that the appellant failed to meet the timing
prong of the knowledge/timing test, and we discern no basis to disturb that
finding.
The appellant argues that she met the knowledge/timing test through other
evidence. IAF, Tab 26 at 23-24. Specifically, she submitted statements from two
union officials, P.D. and E.F, concerning their interactions with two management
officials, M.M. and E.W. It is undisputed that M.M. and E.W. were on the
three-member panel that interviewed the appellant for the Rating Veterans
Service Representative position and influenced the agency’s decision not to select
her.4 According to the union officials’ statements, the appellant told M.M. and
E.W. that she was a whistleblower, and E.F. told M.M. that the appellant was a
whistleblower. However, the administrative judge found that “merely telling
someone that you claim to be a whistleblower is insufficient.” ID at 10.
While we disagree with the administrative judge’s reasoning, we ultimately
agree with his conclusion that the appellant did not prove contributing factor
4 In her OSC complaint, the appellant alleged that she became “very concerned and even
more nervous” when she “entered the interview room” and learned that M.M. and E.W.
were on the panel. IAF, Tab 8 at 49. We find that this statement is sufficient to
demonstrate that she exhausted her administrative remedies as to a perceived
whistleblower claim. See Mount v. Department of Homeland Security , 937 F.3d 37, 48
(1st Cir. 2019) (determining that an appellant proved he raised with OSC his claim that
the agency mistakenly believed that he engaged in protected activity by providing OSC
with “a sufficient factual basis to put [it] on notice” of the claim); see also Chambers v.
Department of Homeland Security , 2022 MSPB 8, ¶ 10 (citing Mount, along with other
cases, in concluding that the substantive requirements of exhaustion are met when an
appellant has provided OSC with sufficient basis to pursue an investigation).5
based on these statements. An individual who is perceived as a whistleblower is
still entitled to the protections of the Whistleblower Protection Act, even if she
has not made protected disclosures. King v. Department of the Army ,
116 M.S.P.R. 689, ¶ 6 (2011). In such cases, the Board will focus its analysis on
the agency’s perceptions, i.e., whether the agency officials involved in the
personnel actions at issue believed that the appellant made or intended to make
disclosures that evidenced the type of wrongdoing listed under 5 U.S.C. § 2302(b)
(8). Id., ¶ 8. Thus, the fact that the appellant was identified as a whistleblower to
certain agency officials, in this case E.W. and M.M., may be sufficient to prove
knowledge of her perceived whistleblower status under the knowledge/timing
test.
We need not resolve this question here, however. An appellant must prove
contributing factor by preponderant evidence. Smith, 2022 MSPB 4, ¶ 19.
Preponderant evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that
a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). P.D.
and E.F. indicated that they represented the appellant between 2012 and 2016,
and 2012 and 2014, respectively. IAF, Tab 26 at 23-24. However, the appellant
does not contest, and P.D. and E.F. do not aver, that the conversations with E.W.
and M.M. took place within 2 years of the appellant’s nonselection.
Based on the evidence in the record, P.D. may be referring to a February 5,
2014 meeting she attended with M.M. and the appellant, when M.M. presented
the appellant with a memorandum placing her on administrative leave. IAF,
Tab 8 at 136. And E.F. may be recalling his confrontation with M.M. on
February 20, 2014, after agency investigators interviewed the appellant regarding
her alleged misconduct. IAF, Tab 8 at 57, Tab 27 at 10. Even assuming the
appellant had made specific allegations that she was identified as a whistleblower
on those dates or during that timeframe, which she has not, she still would not
have met her burden of proof as to the knowledge/timing test. The panel that6
included M.M. and E.W. did not interview the appellant until March 2016, more
than 2 years later. IAF, Tab 23 at 49.
We modify the initial decision to find that the appellant did not prove that the
content of her disclosures led to her nonselection.
The administrative judge acknowledged that the appellant asserted that her
disclosure led to a February 2014 fact-finding investigation that involved M.M.
and E.W., both of whom would later be on the interview panel. ID at 8-9. He
concluded that the report that resulted from the fact-finding did not mention the
appellant’s disclosure or otherwise suggest that the two panel members at issue
had knowledge of her disclosure.5 Id. The parties do not dispute these findings,
which are supported by the record. IAF, Tab 8 at 51, Tab 27 at 10-13.
Given the nature of the appellant’s claims below concerning this
fact-finding, we have considered whether she proved contributing factor based on
the content of her disclosure. We conclude that she did not. While the
administrative judge did not directly address whether the appellant proved
contributing factor based on the content of her disclosure, his omission does not
change the outcome here. See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984).
To prove contributing factor, an employee is not limited to showing that
her status as a whistleblower resulted in a personnel action. See Marano v.
Department of Justice , 2 F.3d 1137, 1140-43 (Fed. Cir. 1993). She may
alternatively prove that her disclosure was a contributing factor in a personnel
action because the content of the disclosure led to that action. Id. at 1143. For
example, in its decision in Marano, id. at 1138-39, 1143, the U.S. Court of
Appeals for the Federal Circuit concluded that an employee proved contributing
5 An investigation is not a personnel action per se; however, the Board will consider
evidence of the conduct of an agency investigation when it is so closely related to a
personnel action that it could have been pretext for gathering evidence to use to
retaliate against an employee for whistleblowing. Spivey v. Department of Justice ,
2022 MSPB 24, ¶ 10. Here, the appellant has not alleged that the investigation was
pretext for her nonselection. IAF, Tab 8 at 57-58.7
factor when his disclosure led to an investigation and the agency reassigned him
as a result of its investigative findings.
The appellant has not claimed that the investigation prompted her
nonselection. IAF, Tab 8 at 54. Nor can we infer it did. The content of the
appellant’s disclosure concerned being improperly ordered not to take additional
evidence regarding MST during phone calls with veterans, while the fact-finding
investigation concerned allegations that the appellant had mishandled veterans’
personally identifiable information and improperly secured office space. IAF,
Tab 8 at 54, 56-57, 136-37, Tab 27 at 10-13. Therefore, the appellant has not
presented evidence linking her disclosure to her nonselection as necessary to
prove contributing factor under Marano.
We further modify the initial decision to find that the appellant did not prove
contributing factor based on other evidence.
The administrative judge acknowledged that an appellant is not limited to
proving contributing factor by means of the knowledge/timing test. ID at 8. The
Board has held that, if an administrative judge determines that an appellant has
failed to satisfy the knowledge/timing test, he shall consider other evidence, such
as evidence pertaining to the strength or weakness of the agency’s reasons for
taking the personnel action, whether the whistleblowing was personally directed
at the proposing or deciding officials, and whether these individuals had a desire
or motive to retaliate against the appellant. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶¶ 15-17 (2012) (finding that the appellant did not demonstrate
that her protected disclosure was a contributing factor in her nonselection through
the knowledge/timing test, but that the administrative judge erred in not
considering whether the appellant proved contributing factor through other
evidence). The administrative judge did not directly address whether the
appellant proved contributing factor via these types of evidence. Instead, he
concluded that the appellant failed to prove contributing factor through means
other than the knowledge/timing test because she did not prove that members of8
the hiring panel had actual or constructive knowledge of her disclosures. ID
at 8-10. Because his analysis was incomplete, we supplement it here.
We look first at the issue of knowledge, which the administrative judge
addressed, and which implicates whether the panel members had a motive to
retaliate. See Dorney, 117 M.S.P.R. 480, ¶ 15 (including the desire or motive to
retaliate as a factor relevant to determining if an appellant demonstrated
contributing factor through means other than the knowledge/timing test). On
review, the appellant argues that, during the proceedings below, the agency
stipulated that the panel members knew of her disclosures. PFR File, Tab 1 at 11.
She also reasserts her claim that, based on P.D. and E.F.’s statements and her
responses to the hiring panel’s questions, she proved that panel members had
direct knowledge of her disclosure. Id. at 11-12.
The appellant bears the burden of proving contributing factor on the merits
of her IRA appeal by preponderant evidence. See Smith, 2022 MSPB 4, ¶ 19. A
party may satisfy her burden to prove a fact by obtaining a stipulation from the
opposing party. 5 C.F.R. § 1201.63. Therefore, if the agency stipulated to
knowledge, the appellant would not be required to prove it.
The administrative judge held a conference with the parties on the date on
which the appellant alleges that the agency made its stipulation. PFR File, Tab 1
at 11; IAF, Tab 30. However, there is no summary of the conference in the
record. Similarly, the initial decision does not reference any stipulations. ID.
Further, the agency’s attorney has disputed the appellant’s account, asserting
instead that he indicated at the conference that “the [a]gency was not going to
challenge the issue of knowledge of the alleged retaliating officials.” PFR File,
Tab 3 at 4. The appellant has replied that, even absent a stipulation, the agency’s
statement that it would not challenge the issue of knowledge was an admission.
PFR File, Tab 4 at 12.
Both parties’ attorneys appear to have been present at the conference in
question, have submitted their pleadings on review under penalty of perjury, and9
have generally stated that they have personal knowledge of the facts. PFR File,
Tab 1 at 3, Tab 4 at 3; IAF, Tab 30 at 2. Because the initial decision lacks any
reference to a stipulation, and given the appellant’s equivocal statement in her
reply, we find that the appellant failed to prove that, more likely than not, such a
stipulation took place. See 5 C.F.R. § 1201.4(q). A party’s decision not to
actively contest an issue is not the same as a stipulation, and it does not constitute
evidence that could satisfy the opposing party’s burden of proof.
The appellant submitted union officials P.D. and E.F.’s statements below,
in which they averred that interview panel members E.W. and M.M. knew of the
appellant’s disclosures. IAF, Tab 26 at 23-24. The union officials made their
statements under penalty of perjury. Id. The administrative judge found that
these statements did not establish that E.W. and M.M. knew of the appellant’s
disclosure. ID at 9-10. The appellant reasserts that her witnesses attested to
knowledge but does not identify any error in the administrative judge’s reasoning.
PFR File, Tab 1 at 12. As explained below, we discern no basis to disturb the
administrative judge’s determination.
One witness stated that he attended a meeting in which the appellant
“informed [one of the panel members] of her whistleblower status and activities.”
IAF, Tab 26 at 23. Another witness stated that he “discussed” the appellant’s
“whistle blower [sic] activity” with one panel member and overheard the
appellant informing a second panel member that she was a whistleblower. Id.
at 24. Sworn statements that are not rebutted are competent evidence of the
matters asserted therein . Truitt v. Department of the Navy , 45 M.S.P.R. 344, 347
(1990). We agree with the administrative judge that the statements do not
establish that members of the hiring panel, at the time they made their
nonselection decision, had knowledge of the specific disclosures (disclosures (1)
and (2)) at issue here. See, e.g., Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 27 (2011) (concluding that disclosures made after the agency10
took the personnel actions at issue could not have been contributing factors in
those actions).
Similarly, to the extent that the appellant argues on review that a statement
a panel member made to her evidences knowledge of her disclosure, we disagree.
According to the appellant, the panel member in question, E.W., told the
appellant, outside of the interview process, that she was “label[ing]” the
appellant, “When you help one veteran, you hurt 5 other veterans.” IAF, Tab 9
at 54. The administrative judge did not directly address this statement in the
initial decision, and the appellant relies on it on review. PFR File, Tab 1
at 15-16. We discern no basis to disturb the initial decision. The appellant has
provided no details to explain what led to this statement, and she does not
indicate whether it took place before or after her nonselection. IAF, Tab 9 at 54;
PFR File, Tab 1 at 15-16.
The appellant also asserts that she “specifically referenced her disclosures
and the content of her disclosures when she answered the panel’s question
regarding customer service.” PFR File, Tab 1 at 12. She relies on an email that
she sent to OSC, which is in the record below. Id. (citing IAF, Tab 9 at 54).
However, she did not state in her email to OSC that she advised the panel that her
supervisors pressured her not to obtain additional information from MST
claimants, the disclosure at issue here. IAF, Tab 9 at 54 . Rather, she indicated
that she advised them that she was involved in the overhaul of an agency legal
manual “and the resultant daily barrage of changes in legal interpretations,
applications, and development, was truly a challenge.” Id. The handwritten notes
of the panel members, to the extent that they are legible, similarly lack any
reference to the disclosure at issue. IAF, Tab 23 at 49-63. Because the
administrative judge properly found that the appellant did not prove that the panel
members knew about disclosures (1) and (2) specifically, she has not shown that
they had a motive to retaliate against her. 11
We also find that the agency provided strong evidence supporting its
decision not to select the appellant. See Dorney, 117 M.S.P.R. 480, ¶ 15. The
agency submitted detailed evidence of its interview process, which resulted in the
appellant’s lower interview score as compared to other candidates. The agency
ranked the appellant 13 out of the 17 candidates. IAF, Tab 22 at 12. Along with
the panel’s interview scores, the agency submitted detailed notes from each
panelist regarding every candidate’s interview, and the scores were unanimous as
to each candidate. IAF, Tab 22 at 12-144, Tab 23 at 4-123. Each interviewer
gave the appellant 14 out of a possible 20 points for a total of 42 points. IAF,
Tab 22 at 12, Tab 23 at 49-63. The individual ranked directly above her, who
was the last individual in rank order that the agency hired under the vacancy
announcement, received a total of 45 points on the basis of 15 points out of a
possible 20 points from each interviewer. IAF, Tab 22 at 12. The individual with
the highest rank received 57 total points on the basis of 19 points out of a
possible 20 points from each interviewer. Id.
The appellant disagrees with the agency’s scoring of her interview
responses and takes issue with the fact that the panel members reached a
consensus on each interviewee’s scores. PFR File, Tab 1 at 14-15. To the extent
that she is arguing that the agency’s scoring proves that the evidence in support
of the agency’s nonselection decision was weak, we are not persuaded. See
Dorney, 117 M.S.P.R. 480, ¶ 15. The appellant received all five possible points
from all three interviewers for “creative thinking,” and all three panelists awarded
her only two out of five points for “flexibility and adaptability” when she
discussed how she overcame the obstacle of achieving quality results when the
agency was undergoing an organizational transformation.6 IAF, Tab 23 at 51, 53,
56, 58, 61, 63. She otherwise received four points from each interviewer for her
6 According to the appellant, as a result of the transformation, the agency required
minimum levels of production each day, as well as monthly online and in-person
training classes and team meetings, and required that employees work well with each
other. IAF, Tab 25 at 85 -86. 12
“personal mastery” and three points for “customer service.” Id. at 50, 52, 55, 57,
60, 62. While the appellant may disagree with the rating of her responses or the
panel’s methodology, we discern nothing suspect in the scoring process.
In sum, the appellant has not established that any members of the hiring
panel had a motive to retaliate against her, and the agency presented strong
evidence in support of her nonselection. Further, the appellant has not alleged
that her disclosures were directed at any hiring panel members. Accordingly, as
modified to find that the appellant did not prove contributing factor based on her
alleged perceived whistleblower status, the content of her disclosures, or by
means other than the knowledge/timing test, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain14
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 15
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 16
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.17 | Ringold_Joy_A_DE-1221-17-0046-W-1_Final_Order.pdf | 2024-09-05 | JOY A. RINGOLD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-1221-17-0046-W-1, September 5, 2024 | DE-1221-17-0046-W-1 | NP |
563 | https://www.mspb.gov/decisions/nonprecedential/McCants_Bruce_E_DC-0752-20-0242-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRUCE E. MCCANTS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-20-0242-I-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant.
Timothy Sessions , Portsmouth, Virginia, for the appellant.
William Fuller Stoddard , Esquire, Portsmouth, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal from Federal service based on a charge of medical inability
to perform the essential duties of his position. On petition for review, the
appellant argues that he could have been accommodated in his position and that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the administrative judge erred in crediting certain evidence submitted by the
agency. Petition for Review (PFR) File, Tab 1 at 6-9. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R.
§ 1201.113(b).
2 In her initial decision, the administrative judge carefully considered the inconsistent
evidence regarding, inter alia, whether the appellant’s medical condition could be
accommodated with the use of a respirator and concluded that the appellant’s condition
could not be so accommodated. Initial Appeal File, Tab 29, Initial Decision at 15-16.
The appellant’s disagreement with that analysis does not provide a basis to disturb the
initial decision. Donato v. Department of Defense , 34 M.S.P.R. 385, 389-90 (1987)
(finding that, although the Board is free to substitute its own determinations of fact
when an administrative judge’s credibility determinations are not based on the
demeanor of witnesses because the case was decided on the written record, the Board
will not reconsider fact-findings simply on the basis of an allegation that the
administrative judge failed to give sufficient weight to the evidence); see Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
administrative judge’s findings when she considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility). 2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | McCants_Bruce_E_DC-0752-20-0242-I-1_Final_Order.pdf | 2024-09-05 | BRUCE E. MCCANTS v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-20-0242-I-1, September 5, 2024 | DC-0752-20-0242-I-1 | NP |
564 | https://www.mspb.gov/decisions/nonprecedential/Triana_EnriqueSF-315H-20-0699-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ENRIQUE TRIANA,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-315H-20-0699-I-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Enrique Triana , Orange, California, pro se.
Timothy J. Kuhn , Esquire, Camp Pendleton, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant reasserts his arguments that the agency
retaliated against him for protected whistleblowing activity and discriminated
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).
against him on the basis of his age, race, and sex when it terminated him during
his probationary period. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify that, absent an otherwise appealable action, the Board lacks independent
jurisdiction over the appellant’s claim that the agency discriminated against him
on the basis of his age, race, and sex, we AFFIRM the initial decision.
Because the appellant failed to make a nonfrivolous allegation that he was
not serving a probationary period at the time of his termination or that he had any
creditable prior Federal service amounting to 2 years of current continuous
service, we agree with the administrative judge’s conclusion that the appellant
failed to nonfrivolously allege that he is an “employee” within the meaning of
5 U.S.C. § 7511(a)(1). Therefore, the appellant has no chapter 75 appeal rights
before the Board.2 With regard to the appellant’s allegations of discrimination on
2 A probationary employee who lacks chapter 75 appeal rights may have the right to
appeal a termination to the Board on the limited grounds set forth in 5 C.F.R.
§ 315.806. Walker v. Department of the Army , 119 M.S.P.R. 391, ¶ 5 (2013).
The administrative judge found, and we agree, that the appellant did not allege that he
met any of the limited categories discussed in the regulations. Initial Appeal File
(IAF), Tab 7, Initial Decision (ID) at 6. The appellant does not challenge this finding
on review, and we find no reason to disturb it.2
the basis of his race, age, and sex, absent an otherwise appealable action, the
appellant’s allegations of prohibited discrimination are not an independent source
of Board jurisdiction. Petition for Review (PFR) File, Tab 2 at 9; 5 C.F.R.
§ 315.806(d) (explaining that the Board has jurisdiction over complaints of
discrimination based upon protected classes including race, sex, and age in
connection with a probationary termination only if “such discrimination is raised
in addition to one of the issues stated in paragraph (b) or (c) of [that] section”);
see Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012) (finding that
absent an otherwise appealable action, the Board lacks jurisdiction over a claim
of discrimination); Burnett v. U.S. Postal Service , 104 M.S.P.R. 308, ¶ 15 (2006)
(holding that, because the appellant failed to establish jurisdiction over her
appeal, she also failed to establish jurisdiction over her discrimination claim).
Although these allegations were not specifically addressed in the initial decision,
in the acknowledgement order, the administrative judge informed the appellant
that, absent an otherwise appealable action, the Board lacked jurisdiction over
such claims. Initial Appeal File, Tab 2 at 3. Accordingly, we modify the initial
decision to make clear that the Board lacks independent jurisdiction over the
appellant’s allegation that the agency discriminated against him on the basis of
his age, race, and sex. Consequently, we affirm the initial decision as modified.3
3 On review, the appellant restates his allegation that he was subjected to reprisal for
protected whistleblowing activity. PFR File, Tab 1 at 5. In the initial decision, the
administrative judge identified the standard for establishing Board jurisdiction over an
individual right of action (IRA) appeal, including the appellant’s burden of proving
exhaustion with the Office of Special Counsel (OSC), and concluded that, based on the
appellant’s assertion that he had filed his complaint with OSC three days prior to filing
his Board appeal and that he had not yet received notice from OSC stating that it was
terminating its investigation into his complaint, the appellant failed to nonfrivolously
alleged Board jurisdiction over his claim as an IRA appeal. ID at 6-7; see Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016) (explaining that the Board has
jurisdiction over an IRA appeal if the appellant has exhausted his administrative
remedies before OSC and makes nonfrivolous allegations that (1) he made a protected
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail to
take a personnel action as defined by 5 U.S.C. § 2302(a)). With his petition for review,3
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
the appellant has not provided a copy of his OSC complaint, a close-out letter from
OSC stating that it was terminating its investigation into his complaint, or any other
evidence concerning the substance of his purported complaint with OSC. Additionally,
in his petition for review (which is essentially a resubmitted initial appeal form filled in
with new information), in the section of the appeal form inquiring whether the appellant
filed a whistleblowing complaint with OSC, he has now checked the box identifying
that he has not filed a complaint with OSC, even though he previously checked the box
stating that he had filed a complaint with OSC and identified September 3, 2020 as his
OSC complaint filing date in his initial appeal. Compare PFR File, Tab 1 at 4, with
IAF, Tab 1 at 5. Thus, on the existing record, it is unclear whether the appellant ever
filed a complaint with OSC. Consequently, we reiterate to the appellant that, if he has
exhausted his administrative remedies with OSC regarding a potential IRA appeal and
wishes to pursue an IRA appeal before the Board, he may wish to file a new Board
appeal regarding that claim.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you5
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 6
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: _____________________ _________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Triana_EnriqueSF-315H-20-0699-I-1_Final_Order.pdf | 2024-09-05 | ENRIQUE TRIANA v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-315H-20-0699-I-1, September 5, 2024 | SF-315H-20-0699-I-1 | NP |
565 | https://www.mspb.gov/decisions/nonprecedential/Demery_LibbyDC-3443-24-0105-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LIBBY A. DEMERY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3443-24-0105-I-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Libby A. Demery , Clinton, Maryland, pro se.
Russell Niemyer , Raleigh, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction without holding her requested
hearing. On petition for review, the appellant argues, among other things, that
the administrative judge made numerous legal and factual errors and should be
recused for changing the docket number, she failed to properly analyze her
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Veterans Employment Opportunities Act of 1998 (VEOA) claim, the agency’s
actions were based on age discrimination and/or constituted prohibited personnel
practices or harmful procedural error, and her appeal should be considered timely
pursuant to 5 C.F.R. § 1201.154(b). 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
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to find that her VEOA claim is
barred by res judicata, we AFFIRM the initial decision.2
¶2We have considered the appellant’s arguments on review, but none warrant
a different outcome. For example, the crux of the appellant’s petition for review
appears to be the administrative judge’s failure to address her claim that the
agency violated her veterans’ preference rights during the 2010 selection process
for the GS-11 Management Analyst position, pursuant to vacancy announcement
number NEHT10457276D. PFR File, Tab 1 at 4-9. The administrative judge
noted below that the appellant stated that this appeal is “not a VEOA” appeal,
Initial Appeal File (IAF), Tab 4 at 3, Tab 6 at 1, and she therefore did not analyze
such a claim in the initial decision, IAF, Tab 9, Initial Decision (ID) at 2 n.1.
2 In light of our disposition of the issues raised in this matter, we need not make
findings on the issues of timeliness and/or laches.2
However, any adjudicatory error made by the administrative judge in this regard
is not prejudicial to the appellant’s substantive rights and provides no basis for
reversal of the initial decision . See Panter v. Department of the Air Force ,
22 M.S.P.R. 281, 282 (1984). The appellant’s VEOA claim involving her 2010
nonselection, pursuant to vacancy announcement number NEHT10457276D,
which she subsequently pursued with the Department of Labor (DOL) (MD-2019-
021-VPH), is the same claim that she raised in Demery v. Department of the
Army, MSPB Docket No. PH-3330-19-0292-I-1. Compare IAF, Tab 1 at 6, Tab 4
at 3, Tab 7 at 4-5; PFR File, Tab 1 at 4-9, with Demery v. Department of the
Army, MSPB Docket No. PH-3330-19-0292-I-1, Initial Decision (July 25, 2019).
Following the appellant’s petition for review in the 0292 matter, the Board issued
a final decision in which it found that it has jurisdiction over the VEOA appeal,
but it denied the appellant’s request for corrective action because she failed to file
a timely DOL complaint. Demery v. Department of the Army , MSPB Docket No.
PH-3330-19-0292-I-1, Final Order (June 25, 2024).
¶3Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action, and it precludes parties from relitigating claims that
were, or could have been, raised in the prior action, and is applicable if (1) the
prior judgment was rendered by a forum with competent jurisdiction, (2) the prior
judgment was a final judgment on the merits, and (3) the same cause of action
and the same parties or their privies were involved in both cases. Peartree v. U.S.
Postal Service, 66 M.S.P.R. 332, 337 (1995). We find that these criteria are
satisfied. Accordingly, the appellant’s VEOA claim in this matter is barred by res
judicata. See Sabersky v. Department of Justice , 91 M.S.P.R. 210, ¶ 9 (2002)
(stating that the Board is permitted to raise the issue of res judicata sua sponte),
aff’d, 61 F. App’x 676 (Fed. Cir. 2003).
¶4The appellant appears to be arguing on review that her Board appeal was
timely filed pursuant to 5 C.F.R. § 1201.154(b). PFR File, Tab 1 at 11. This3
argument is not persuasive. The regulation at 5 C.F.R. § 1201.154(b) states that
an appellant who files an appeal raising issues of prohibited discrimination “in
connection with a matter otherwise appealable to the Board” must comply with
certain time limits. Here, however, the time limits in 5 C.F.R. § 1201.154(b) are
not applicable because the appellant’s 2010 nonselection, as described in her
pleadings, is not a matter that is otherwise appealable to the Board.
¶5We are also not persuaded by the appellant’s argument that the
administrative judge erred by dismissing her appeal for lack of jurisdiction.
Regarding the appellant’s assertion on review that the agency’s actions were due
to prohibited age discrimination, were based on prohibited personnel practices, or
otherwise constituted harmful procedural error, the Board lacks jurisdiction to
hear such claims in the absence of an otherwise appealable action. ID at 4-5; see
Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012) (holding that, absent
an otherwise appealable action, the Board has no jurisdiction to consider claims
of discrimination, prohibited personnel practices, and harmful procedural error,
among other things); see also Wren v. Department of the Army , 2 M.S.P.R. 1, 2
(1980) (stating that prohibited personnel practices under 5 U.S.C. § 2302(b) are
not an independent source of Board jurisdiction), aff’d, 681 F.2d 867, 871 -73
(D.C. Cir. 1982).
¶6We have considered the appellant’s remaining arguments on review, but
none warrants a different outcome. For example, we are not persuaded that
recusal is appropriate. See 5 C.F.R. § 1201.42. In making a claim of bias or
prejudice against an administrative judge, a party must overcome the presumption
of honesty and integrity that accompanies administrative adjudicators . Oliver
v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)4
(quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). We see no evidence
of such favoritism or antagonism in the record before the administrative judge.
¶7Finally, the appellant has filed a motion for leave to file an additional
pleading. PFR File, Tab 4. We deny this motion because it does not warrant a
different outcome on the issues before us.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of 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. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 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 than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 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/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Demery_LibbyDC-3443-24-0105-I-1_Final_Order.pdf | 2024-09-05 | LIBBY A. DEMERY v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3443-24-0105-I-1, September 5, 2024 | DC-3443-24-0105-I-1 | NP |
566 | https://www.mspb.gov/decisions/nonprecedential/Demery_Libby_DC-3443-23-0042-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LIBBY A. DEMERY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DC-3443-23-0042-I-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Libby A. Demery , Clinton, Maryland, pro se.
Jenny Lin Naylor and B. Patrick Costello , Arlington, Virginia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed several of her nonselection and other claims for lack of jurisdiction,
dismissed her claims under the Veterans Employment Opportunities Act of 1998
(VEOA) based on adjudicatory efficiency, and dismissed her whistleblower
reprisal claims as barred by res judicata. On petition for review, among other
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
things, the appellant references various veterans’ preference statutes, she asserts
that the agency engaged in age discrimination, and she argues that the
administrative judge improperly denied her requests to certify an interlocutory
appeal. 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 appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant’s VEOA claim is barred by res judicata, we
AFFIRM the initial decision.2
¶2At the time the initial decision was issued, the administrative judge
correctly dismissed the appellant’s VEOA claim as barred by adjudicatory
efficiency because the same claim was pending before the Board on review in
Demery v. Department of the Army , MSPB Docket No. PH-3330-19-0292-I-1.
However, the Board has since issued its final decision in the 0292 matter, finding
that it has jurisdiction over the VEOA appeal but denying the appellant’s request
for corrective action because she failed to file a timely complaint with the
Department of Labor. Demery v. Department of the Army , MSPB Docket No. PH-
3330-19-0292-I-1, Final Order (June 25, 2024).
2 Because we are affirming the initial decision, we need not address the timeliness of
the appeal.2
¶3Under the doctrine of res judicata, a valid, final judgment on the merits of
an action bars a second action involving the same parties or their privies based on
the same cause of action, and it precludes parties from relitigating claims that
were, or could have been, raised in the prior action, and is applicable if (1) the
prior judgment was rendered by a forum with competent jurisdiction, (2) the prior
judgment was a final judgment on the merits, and (3) the same cause of action and
the same parties or their privies were involved in both cases. Peartree v. U.S.
Postal Service, 66 M.S.P.R. 332, 337 (1995). We find that these criteria are
satisfied. Accordingly, the appellant’s VEOA claim in this matter is barred by res
judicata.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 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 prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Demery_Libby_DC-3443-23-0042-I-1_Final_Order.pdf | 2024-09-05 | LIBBY A. DEMERY v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-3443-23-0042-I-1, September 5, 2024 | DC-3443-23-0042-I-1 | NP |
567 | https://www.mspb.gov/decisions/nonprecedential/Walker_CarnellSF-0752-21-0292-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARNELL WALKER,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
SF-0752-21-0292-I-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carnell Walker , Susanville, California, pro se.
Nancy Anderson Sinclair , Esquire, Herlong, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging the reclassification of his position from a GS-11
level to a GS-10 level for lack of jurisdiction because he received grade and pay
retention benefits under 5 U.S.C. chapter 53. On petition for review, the
appellant argues that the reclassification was not typical because it was not part
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
of a reorganization, claiming that it was the intent for individuals assigned to that
position to be at the GS-11 grade level, and that he had been a GS-11 for years
prior to the assignment of the position description. Petition for Review File,
Tab 1 at 3-4. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 To the extent that the administrative judge did not apprise the appellant of the proper
legal standard in his jurisdictional order, he recited and applied the correct legal
standard in the initial decision. Initial Appeal File, Tab 8, Initial Decision at 2-3.
Thus, the appellant was on notice as to the applicable legal standard and had an
opportunity to meet his burden of proof on review, but did not make any allegation that
would support a finding of jurisdiction. See Grubb v. Department of the Interior ,
96 M.S.P.R. 377, ¶¶ 18-19 (2004) (finding that, when the administrative judge did not
apprise the appellant of the proper legal standard but the initial decision contained a
discussion of the proper standard, the appellant had an opportunity on review to meet
her burden of proof).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Walker_CarnellSF-0752-21-0292-I-1_Final_Order.pdf | 2024-09-05 | CARNELL WALKER v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-0752-21-0292-I-1, September 5, 2024 | SF-0752-21-0292-I-1 | NP |
568 | https://www.mspb.gov/decisions/nonprecedential/Parkinson_John_C_SF-0752-13-0032-X-1__Show Cause Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN C. PARKINSON,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-0752-13-0032-X-1
DATE: September 5, 2024
THIS ORDER IS NONPRECEDENTIAL1
Jesselyn Radack and Kathleen McClellan , Washington, D.C., for the
appellant.
Celeste Wasielewski , Esquire, and Drew Ambrose , Washington, D.C., for
the agency.
Deja C. Nave , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
ORDER TO SHOW CAUSE
This petition for enforcement is before the Board to obtain compliance with
the Board’s October 10, 2018 final decision in the underlying case, which, after a
remand from the U.S. Court of Appeals for the Federal Circuit, mitigated the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant’s removal to a 15-day suspension. See Parkinson v. Department of
Justice, MSPB Docket No. SF-0752-13-0032-M-2, Initial Decision (Oct. 10,
2018). The appellant filed a petition for enforcement of that decision, which the
administrative judge granted in part in a January 15, 2020 compliance initial
decision. Parkinson v. Department of Justice , MSPB Docket No. SF-0752-13-
0032-C-1, Compliance Initial Decision (Jan. 15, 2020). Both parties petitioned
for review of the compliance initial decision. On May 20, 2024, the Board issued
an order denying the petitions for review; affirming in part, modifying in part,
and vacating in part the analysis in the compliance initial decision; and referring
the petition for enforcement to the Board’s Office of General Counsel for
additional processing in furtherance of the Board issuing a final decision once the
agency had demonstrated compliance with the obligations imposed by the October
10, 2018 Order, as interpreted through its May 20, 2024 Order. Parkinson v.
Department of Justice , MSPB Docket No. SF-0752-13-0032-C-1, Order (May 20,
2024) (May 20, 2024 Order); Parkinson v. Department of Justice , MSPB Docket
No. SF-0752-13-0032-C-1, Compliance Petition for Review File, Tab 8.
On June 26, 2024, the Board issued an Order and Summary of Telephone
Conference summarizing the parties’ June 17, 2024 conference with the Board’s
Office of General Counsel, and noting the status of issues outstanding from its
May 20, 2024 Order. Parkinson v. Department of Justice , MSPB Docket No. SF-
0752-13-0032-X-1, Compliance Referral File (CRF), Tab 9. On July 3, 2024, the
Board issued an order clarifying and superseding the June 26, 2024 Order to the
extent the second order contradicted the first. CRF, Tab 11. Specifically, as
relevant to the instant Order, the two orders together noted the agency’s
obligation to pay the appellant back pay, with interest, and benefits, and less any
interim earnings, for the time period July 14, 2016, through December 17, 2018;
and to return the appellant to the status quo ante for the time period December 18-
30, 2018. CRF, Tabs 9 and 11. Finally, the July 3, 2024 Order instructed the
agency to file detailed evidence of compliance by August 20, 2024, and instructed2
the appellant to file a response to the agency’s submission by September 20,
2024. CRF, Tab 11 at 2.
On August 20, 2024, the agency indeed filed a response to the July 3, 2024
Order, but made no attempt to comply with the substance of the Board’s
instructions. Rather than submitting evidence that it paid the appellant as
required for July 14, 2016, through December 17, 2018, and restored him to the
status quo ante for December 18-30, 2018, the agency flatly refused to comply
with the Board’s Order on the basis that it believed the Board’s findings in its
May 20, 2024 Order were “erroneous as a matter of law and will have a
substantial, adverse impact on the administration of the civil service and matters
of national security.” CRF, Tab 14 at 4. The agency provided no explanation or
evidence for this extraordinary statement.
We note, first, that it is not obvious how routine payment of back pay could
“have a substantial, adverse impact on the administration of the civil service,” as
the agency claims. We reject this contention as absurd on its face. Moreover, the
Office of Personnel Management (OPM), not the agency, oversees the
administration of the civil service. E.g., 5 U.S.C. §§ 1103(a)(5), 7701(d),
7703(d). The agency has no authority to arrogate to itself the determination of
what constitutes impact on the administration of the civil service.
Regarding the agency’s unelucidated claim of potential impact on matters
of national security, as explained in the May 20, 2024 Order, the Board does not
interfere in security clearance determinations. But this is not a security clearance
determination. This is a determination that the agency improperly failed to pay
appropriate back pay and restore the appellant to duty during periods when—
according to the Board’s factual determinations based on the administrative
record—the appellant possessed a valid clearance. May 20, 2024 Order at 15, 17.
The agency already submitted these arguments in its petition for review in the
underlying petition for enforcement matter, and we already rejected them on both
factual and legal grounds. May 20, 2024 Order at 11-17. The agency has not3
even attempted to explain why we should entertain these arguments again, and we
decline to do so.
The agency asserted that, in lieu of complying with the May 20, 2024
Order, it is “exploring an avenue to challenge those findings.” CRF, Tab 14 at 4.
The agency provided no legal authority for its claim that it can challenge the
Board’s Order, and we are aware of none. The Board’s statutory authority under
5 U.S.C. § 1204(a)(2) to enforce its orders is well established. Moreover, the
U.S. Court of Appeals for the Federal Circuit has long held that agencies have no
judicial right to appeal the Board’s orders. The sole exception is the unusual
circumstance where the Director of OPM, having already participated in the case
before the Board, petitions the court for review of a decision that the Director
believes erred in interpreting a civil service law, rule, or regulation affecting
personnel management, and which will have a substantial impact on a civil
service law, rule, regulation, or policy directive. 5 U.S.C. § 7703(d); e.g., Horner
v. Schuck, 843 F.2d 1368, 1373 (Fed. Cir. 1988) (OPM Director “has sole
authority to seek judicial review of a board decision that is unfavorable to an
agency”); Department of Health and Human Services v. Bercier , 261 F. App’x
284, at *1 (Fed. Cir. 2008) (dismissing appeal signed by agency representative
because “[o]nly the Office of Personnel Management can petition this court for
review of a Board decision on behalf of an agency”). The OPM Director has not
participated here. And as explained above, the agency has no authority to assert
claims that are reserved to the OPM Director.
Moreover, even if the agency had a judicial right of appeal, it would not
attach to the May 20, 2024 decision, which is not final and appealable. E.g.,
Weed v. Social Security Administration , 571 F.3d 1359, 1362 (Fed. Cir. 2009)
(Board order forwarding appeal for further adjudication was not final and
appealable under section 1295(a)(9)).2 The agency is well aware of these points,
2 It would also be far too late to attach to the Board’s October 10, 2018 decision—
which, we remind the agency, followed a partial reversal by the Federal Circuit of the
Board’s original decision affirming the agency’s removal action.4
as the Board’s Office of General Counsel noted them during the June 17, 2024
conference and in subsequent email correspondence with the agency on June 28,
2024.
If the agency is attempting to pursue some non-judicial avenue to overturn
our decision, we likewise are aware of none, and the agency has not enlightened
us. Nor has the agency explained why it would purportedly take more than
3 months to explore such options—the judicial appeal deadline, even if it applied
to the decision at issue and could be exercised by the agency, is a mere 60 days,
5 U.S.C. § 7703(b)(1)(A)—or why it has no time frame for concluding its
explorations. Thus, it is difficult to escape the conclusion that the agency’s
purported exploration of appeal options is not bona fide, and that in fact it has no
intention of ever complying with the Board’s orders.
Finally, we reject as well the agency’s specious claim that while it mulls
over the dubious “avenues” discussed above, it cannot pay the appellant because
“he would have to set that money aside until the Government exhausts its appeal
rights” and that defying the Board’s orders is the “prudent” course to save the
appellant from potentially having to repay a debt. CRF, Tab 14 at 4-5. As
explained above, the agency has no appeal rights. Even if it did, it has no
authority to refuse to comply with the Board’s Order pending the outcome of any
such appeals. If compliance with the Board’s Order resulted in adverse debt or
tax consequence to the appellant, that would be unfortunate, but has no bearing
on the agency’s obligations. Agencies not infrequently issue payments that may
alter or increase an appellant’s tax burden, or that may later require accounts to
be squared and create debts to be repaid. This is a natural product of restoring an
appellant to the status quo ante (which may include back pay), especially if
significant time elapses between the original adverse action and the Board’s
reversal of the action. Here, the agency’s sudden solicitude for the appellant’s
financial circumstances notwithstanding, the agency must timely comply with the5
Board’s Orders. The agency is entitled to disagree internally with the Board’s
determinations, but it is not entitled to disobey them.
As noted above, the Board has statutory authority to enforce its orders,
5 U.S.C. § 1204(a)(2). It also has statutory and regulatory authority to impose
sanctions against the agency official responsible for noncompliance with a Board
order. 5 U.S.C. § 1204(e)(2)(A); 5 C.F.R. § 1201.183(c). Such sanctions may
include a ruling adverse to the agency and certification to the Comptroller
General of the United States that no payment is to be made to certain agency
employees found to be in noncompliance with the Board’s order. 5 C.F.R. §
1201.183(e).
As authorized by these provisions, the Board hereby ORDERS as follows:
(a)Within 3 days of the date of this Order, the agency shall file a submission
identifying the current responsible agency official—specifically, that
individual’s name, title, grade, and address. See 5 C.F.R. §§ 1201.183(a)(2),
1201.183(a)(7). If the agency fails to submit this information, the Board will
assume that the responsible agency official is Bradley Brooker, General
Counsel.3
(b)Within 7 days of the date of this Order, the agency and the responsible
agency official are DIRECTED TO SHOW CAUSE why sanctions should not
be imposed for the agency’s failure to comply in full with the Board’s May
20, 2024 Order. Both the agency’s and the responsible agency official’s
responses shall address the specific actions the agency will take to come into
compliance with the May 20, 2024 Order, and by what date. Such date shall
be no later than 14 days from the date of this Order. Additionally, the
responsible agency official’s response shall include a sworn declaration that
the agency representatives in this case have fully apprised him or her of the
3 The agency originally informed the Board that this official was Dana Boente, General
Counsel, but Mr. Boente appears to have left the agency in approximately 2020.6
issues, the agency’s obligations, the Board’s orders and the agency’s failure
to comply with them, and the Board’s sanction authority.
(c)Within 7 days of the date of this Order, the agency representatives,
Ms. Deja Nave and Mr. Drew Ambrose, are both ORDERED to submit
separate sworn declarations attesting that they each informed the responsible
agency official of the above information and provided him or her a copy of
this Order. Ms. Nave and Mr. Ambrose must also attest that they each
provided their immediate supervisors a copy of this Order. Finally, if the
responsible agency official is an individual other than Mr. Brooker, Ms. Nave
and Mr. Ambrose must attest that they each provided Mr. Brooker a copy of
this Order as well.
If complete, substantive responses and declarations are not received within
the time frames specified above, the Board will issue an order requiring the
agency and the responsible agency official to appear in person for a show cause
hearing before the Board at the Headquarters of the Merit Systems Protection
Board in Washington, D.C. See 5 C.F.R. § 1201.183(c). The Board reminds the
agency that the Board has statutory and regulatory authority to compel
attendance, including by subpoena. 5 U.S.C. § 1204(b)-(d); 5 C.F.R. §§ 5.4,
1201.81-.85, 1201.183(c)(1).7
The appellant may file a response to the forthcoming agency submissions,
if he desires, within 7 days of the date of those submissions.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Parkinson_John_C_SF-0752-13-0032-X-1__Show Cause Order.pdf | 2024-09-05 | JOHN C. PARKINSON v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-0752-13-0032-X-1, September 5, 2024 | SF-0752-13-0032-X-1 | NP |
569 | https://www.mspb.gov/decisions/nonprecedential/Egge_ShanonDE-0752-20-0087-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHANON EGGE,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DE-0752-20-0087-I-1
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Morgan Velasquez , Esquire, and Stephanie Bernstein , Esquire, Dallas,
Texas, for the appellant.
Marcus Alonzo Mitchell , Albuquerque, New Mexico, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her removal from Federal service. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. We MODIFY the initial
decision to merge portions of the conduct unbecoming charge with the failure to
maintain a condition of employment charge. We further MODIFY the initial
decision to clarify the standards for analyzing claims of sex and age
discrimination and retaliation for equal employment opportunity (EEO) activity,
still finding that the appellant failed to prove her affirmative defenses. Except as
expressly modified herein, we AFFIRM the initial decision and SUSTAIN the
agency’s removal penalty.
BACKGROUND
The appellant was employed as a Supply Technician by the Forest Service.
Initial Appeal File (IAF), Tab 5 at 16. Her job duties included dispatch
operations and mobilization, purchasing goods and monitoring procurement
progress, supply transaction processing, and property management and
accountability. IAF, Tab 6 at 75-76. To purchase goods for the agency, the
appellant used her purchase card account. IAF, Tab 5 at 46-56, 60-61. The
agency conducted routine audits of the purchase card account in 2012, 2014,
2016, and 2017, and the results were provided to the appellant. Id. The audits
revealed that the appellant was missing requisitions, W-9 forms, and receipts, but
each time recommended that the purchase card account be renewed. Id. In2
September 2018, the appellant’s second-level supervisor requested an audit of the
appellant’s purchase card activity. IAF, Tab 5 at 91, Tab 22 at 30. The agency’s
Regional Agency Program Coordinator for Purchase Card conducted the audit for
the period from September 7, 2016, to September 6, 2018, which resulted in
various negative findings, including missing requisitions and acceptance of free
gifts on six instances. IAF, Tab 5 at 85-89, Tab 22 at 29-30. The reviewer noted
that past audits revealed similar violations that were communicated to the
appellant, including missing requisitions and W-9 forms, and she recommended
that the purchase card account be terminated. IAF, Tab 5 at 88, Tab 22 at 30.
Accordingly, a third agency official, the Acting Director of Acquisition
Management, terminated the appellant’s purchase card account on October 9,
2018, based on 10 negative findings. IAF, Tab 5 at 91-92, Tab 22 at 32-33.
In November 2018, the appellant contacted the agency’s EEO office, and in
March 2019, she filed a formal EEO complaint alleging sex and age
discrimination and retaliation based on prior EEO activity. IAF, Tab 1 at 8-15.
The appellant named various responsible management officials, including her
second-level supervisor. Id.
On April 30, 2019, the agency issued the appellant a notice proposing to
remove her from Federal service based on two charges: (1) failure to maintain a
condition of employment; and (2) conduct unbecoming a Federal employee. IAF,
Tab 5 at 34-35. On May 29, 2019, the agency issued a decision sustaining both
charges and removing the appellant from the Federal service. Id. at 17-20.
Thereafter, the appellant amended her EEO complaint to allege that her removal
from the Federal service was discriminatory and retaliatory. IAF, Tab 1 at 11.
The agency issued a final agency decision finding that the agency did not
discriminate or retaliate against the appellant and advising her of the right to file
a Board appeal concerning her removal. Id. at 8-31.
The appellant filed a Board appeal. IAF, Tab 1. Though she initially
requested a hearing, the appellant later withdrew that request. IAF, Tab 19.3
Upon consideration of the pleadings, the administrative judge issued an initial
decision affirming the appellant’s removal and finding that she failed to prove her
affirmative defenses of sex and age discrimination and retaliation. IAF, Tab 31,
Initial Decision (ID). The appellant has filed a petition for review, and the
agency has filed a response. Petition for Review (PFR) File, Tabs 6, 9.
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm the administrative judge’s finding that the agency proved Charge 1,
failure to maintain a condition of employment, by preponderant evidence.
To prove the charge of failure to maintain a condition of employment, the
agency must show by preponderant evidence that (1) the requirement at issue, i.e.,
maintaining a purchase card, is a condition of employment, and (2) the appellant
failed to meet that condition. Gallegos v. Department of the Air Force ,
121 M.S.P.R. 349, ¶ 6 (2014). The Board has also stated that, when the charge
consists of the employing agency’s withdrawal or revocation of its certification or
other approval of the employee’s fitness or other qualifications to hold her
position, the Board’s authority generally extends to a review of the merits of that
withdrawal or revocation. Adams v. Department of the Army , 105 M.S.P.R. 50,
¶ 10 (2007), aff’d, 273 F. App’x 947 (Fed. Cir. 2008).
The administrative judge found that the agency proved each of these
elements: the appellant was required to maintain a purchase card as a condition
of her employment, the appellant failed to meet that condition of employment
when her purchase card account was revoked, and the agency’s revocation of the
appellant’s purchase card authority was proper.2 ID at 7-14. On review, the
appellant asserts, as she did before the administrative judge, that a purchase card
2 The agency revoked the appellant’s purchase card based on 10 negative findings
resulting from an audit. IAF, Tab 5 at 91-92. The administrative judge found that the
agency submitted evidence sufficient to establish that the appellant accepted free gifts
(Finding 10), but that it did not submit evidence to support the other 9 findings. ID
at 13-14. Nonetheless, he found that the acceptance of free gifts of a personal nature, in
violation of the Federal Acquisition Regulation, was sufficient to support termination of
the appellant’s purchase card account. Id. 4
was not necessary to perform her role as Lead Supply Technician. PFR File,
Tab 6 at 10-11.
We disagree with the appellant’s position and agree with the administrative
judge’s findings. The administrative judge noted that the appellant’s position
description states that purchasing goods and monitoring procurement progress
constitutes 25 percent of the position’s duties. ID at 8-9; IAF, Tab 6 at 75-76.
The appellant’s second-line supervisor stated that the Supply Technician position
conducts “many hundreds, if not thousands of credit card transactions in a year”
and that “ordering and purchasing” is one of three main responsibilities of the
position. ID at 8-10; IAF, Tab 22 at 22-23. The agency confirmed that the
appellant processed an average of 213 transactions per year with an average
yearly dollar amount of approximately $132,873 for fiscal years 2016 through
2018. IAF, Tab 5 at 21. The administrative judge considered and rejected the
appellant’s argument that using her purchase card did not, or should not,
constitute a major portion of her duties, finding her assertion that her “purchasing
responsibilities have been substantially decreased” insufficient to overcome the
agency’s evidence on this point and noting that, absent evidence of bad faith or
patent unfairness, the Board defers to the agency’s requirements that must be
fulfilled for an individual to qualify for appointment to, or to retain, a particular
position. ID at 9-10 (citing Thompson v. Department of the Air Force ,
104 M.S.P.R. 529, ¶ 9 (2007)). We find no reason to disturb the administrative
judge’s findings.
The appellant also argues on review that the position description no longer
accurately reflects the nature of her job duties because it has not been updated
since 1998. PFR File, Tab 6 at 11. However, we find this argument unavailing
given the testimony set forth above. To the extent the appellant raised other
arguments regarding the agency’s alleged failure to place her on notice regarding
past instances of inappropriate behavior, notice is not part of the burden of proof
for the charge of failure to maintain a condition of employment, but rather goes to5
the factors enumerated in Douglas v. Veterans Administration , 5 M.S.P.R. 280,
305-06 (1981), which are discussed below. Accordingly, we affirm the
administrative judge’s findings and sustain Charge 1.
We affirm the administrative judge’s finding that the agency proved Charge 2,
conduct unbecoming a Federal employee, by preponderant evidence.
To prove a charge of conduct unbecoming a Federal employee, the agency
must prove that the employee engaged in the conduct as described in the charge
and that such conduct was improper, unsuitable, or detracted from her character
or reputation. Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 42
(2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011), and overruled on other grounds by
Department of Health and Human Services v. Jarboe , 2023 MSPB 22, ¶ 9.
Conduct may be deemed unsuitable and detracting from an employee’s reputation
if it reflects poor judgment on the part of the employee. Miles v. Department of
the Army, 55 M.S.P.R. 633, 637 (1992).
The administrative judge sustained each of the five specifications of the
conduct unbecoming charge. ID at 14-21. As to Specifications A through D, the
administrative judge found that the agency proved by preponderant evidence that
the appellant used her Government purchase card to place an order with a vendor
and accepted free gifts that were personal in nature in violation of the Standards
of Ethical Conduct for Employees of the Executive Branch and the Federal
Acquisition Regulation (FAR). ID at 13-17. On review, the appellant does not
dispute that the conduct occurred or that it violated the Standards of Ethical
Conduct or the FAR. PFR File, Tab 6 at 12-14; IAF, Tab 24 at 8 (“[T]he
[a]ppellant admitted to receiving the free gifts mentioned in the specifications . . .
.”). Rather, she asserts that acceptance of free gifts from this vendor was “a
standard and encouraged practice at the [a]gency” and that the agency was aware
of the appellant’s conduct but issued no corrective action prior to the proposed
removal. PFR File, Tab 6 at 13-14. The administrative judge considered and
rejected this argument, finding that the appellant did not offer evidence that any6
other employee accepted free gifts of a personal nature to the same extent that the
appellant did. ID at 12-13. The appellant has not established a sufficient basis
for disturbing the administrative judge’s findings as to Specifications A through
D.
As to Specification E, the administrative judge found that the agency
proved that the appellant failed to properly secure and safeguard documents
containing personally identifiable information (PII). ID at 17-21. He considered
the appellant’s assertion that some of the documents were papers she was working
with at the time she was escorted out of the work area and was not permitted time
to secure, and he found that there were additional documents beyond those the
appellant was working with at the time she was removed containing PII that were
unsecured in her work area. ID at 20-21.
On review, the appellant asserts that she was unable to respond to this
specification because the agency failed to identify the date on which the alleged
misconduct occurred. ID at 14. However, the appellant responded to the
allegation in her oral reply and her March 7, 2019 sworn statement, in which she
denied leaving documents unsecured on her desk. IAF, Tab 5 at 31, Tab 6
at 10-11; see Coppola v. U.S. Postal Service , 47 M.S.P.R. 307, 312 (1991)
(holding that, when an appellant comes forward and refutes a charge made against
him, the Board cannot find that he was not on notice of that charge). We find that
the agency provided the appellant with sufficient information to respond,
including the approximate date the documents were discovered, a description of
the documents, photos of the location in which the documents were found, and a
copy of some of the redacted documents. IAF, Tab 5 at 35, 96. Therefore, we
affirm the administrative judge’s findings as to Specification E.
Finally, the appellant asserts on review that the administrative judge
improperly failed to merge the charges and that the removal must therefore be
reversed. PFR File, Tab 6 at 15-16. Charges will merge if they are based on the
same conduct and proof of one charge automatically constitutes proof of the other7
charge. Shiflett v. Department of Justice , 98 M.S.P.R. 289, ¶ 5 (2005). We find
that the failure to maintain a condition of employment charge based on the
acceptance of free gifts should merge with Specifications A through D of Charge
2 because they are based on the same conduct. See Gunn v. U.S. Postal Service ,
63 M.S.P.R. 513, 516-17 (1994). Specification E of Charge 2, failure to secure
PII, constitutes separate and distinct conduct from the allegations described in the
failure to maintain a condition of employment charge, and thus Specification E
does not merge. Despite our decision to merge a portion of Charge 2 with Charge
1, this does not mean that the duplicative charge is not sustained, and we find no
basis to disturb the administrative judge’s penalty determination based on merger
alone. See Shiflett, 98 M.S.P.R. 289, ¶ 12.
We clarify the legal standards concerning discrimination and retaliation claims,
and we affirm the administrative judge’s finding that the appellant failed to prove
her affirmative defenses.
The appellant argues that the administrative judge incorrectly weighed the
evidence and applied an incorrect legal standard regarding her affirmative
defenses of discrimination (sex and age) and retaliation for EEO activity. We
take this opportunity to clarify the applicable legal standard for such claims.
After the initial decision was issued, the Board clarified the proper
analytical framework for adjudicating claims of discrimination and EEO
retaliation under Title VII. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 21-25. Under Pridgen, the appellant bears the initial burden
of proving by preponderant evidence that the prohibited consideration was a
motivating factor in the contested personnel action. Id., ¶ 21. In determining
whether the appellant has met her burden, the Board must consider all of the
evidence together as a whole. See id., ¶ 24.
On review, the appellant reiterates her arguments that her second-level
supervisor harbored discriminatory and retaliatory animus against her and that
men within the agency’s management team made sexist and ageist comments.8
PFR File, Tab 6 at 22-23. Considering the evidence presented by the appellant
and the record as a whole, the administrative judge found that the appellant failed
to establish that sex, age, or EEO activity played a role in the agency’s action. ID
at 21-29. As to the appellant’s allegations of her second-line supervisor’s
comments about older employees and specifically older women, the
administrative judge found that the appellant failed to establish that her
second-level supervisor was biased against women or people over the age of 40 or
that such bias could be imputed to other agency officials. ID at 28-29.
Considering the evidence in the record and the appellant’s arguments on review,
we find no basis to disturb the administrative judge’s findings that her sex, age,
and EEO activity did not play a role in the agency’s action. ID at 21-29. Thus,
we find that the appellant failed to prove that her sex, age, or EEO activity was a
motivating factor in the agency’s action and she failed to prove her affirmative
defenses of discrimination and retaliation.
We affirm the administrative judge’s finding that removal is within the bounds of
reasonableness.
The Board will review an agency-imposed penalty only to determine if the
agency considered all of the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. The U.S.
Court of Appeals for the Federal Circuit has stated that “[i]t is not the Board’s
place to infringe upon an agency’s exclusive domain as workforce manager to
independently institute a new penalty.” Robinson v. Department of Veterans
Affairs, 923 F.3d 1004, 1016 -17 (Fed. Cir. 2019) (internal citations omitted).
When all of the agency’s charges are sustained, the agency’s penalty
determination is entitled to deference and only should be reviewed to determine
whether it is within the parameters of reasonableness. Payne v. U.S. Postal
Service, 72 M.S.P.R. 646, 650 (1996).
On review, the appellant largely reasserts the same arguments regarding the
penalty that she made before the administrative judge. PFR File, Tab 6 at 16-19.9
She argues that the administrative judge gave too much deference to the agency’s
determination that removal was reasonable, and that the agency failed to
“adequately consider” the effect of the offense on the appellant’s ability to
perform her job, the consistency of the penalty with those imposed on other
employees for the same or similar offenses, the clarity with which she was on
notice that she was violating the rules, and mitigating circumstances surrounding
the offense. Id.3
As the administrative judge found, the deciding official set forth a detailed
penalty analysis, reflecting a reasoned consideration of each of the 12 factors set
forth in Douglas, 5 M.S.P.R. at 305-06. IAF, Tab 5 at 21-27. Having considered
the appellant’s arguments, we nevertheless agree with the administrative judge
that the deciding official considered the relevant factors and exercised his
discretion within the tolerable limits of reasonableness for the reasons set forth in
the initial decision. ID at 31-37.
Regarding the appellant’s argument that the penalty is inconsistent with
those imposed on other employees for the same or similar offenses, we take this
opportunity to clarify the relevant legal standard regarding this allegation. PFR
File, Tab 6 at 18-19. Following the issuance of the initial decision, the Board
issued a decision in Singh v. U.S. Postal Service , 2022 MSPB 15, which held that
broad similarity between employees is insufficient to establish that they are
appropriate comparators. The universe of potential comparators will vary from
case to case, but it should be limited to those employees whose misconduct and/or
other circumstances closely resemble those of the appellant. Id., ¶ 13.
Furthermore, the Board held that the relevant inquiry is whether the agency
knowingly and unjustifiably treated employees who engaged in the same or
3 The appellant also asserts that the agency failed to establish “nexus” between the
sustained charges and the efficiency of the service. PFR File, Tab 6 at 20. However,
she fails to demonstrate any factual or legal error in the administrative judge’s reasoned
conclusion that the agency established nexus for this job-related misconduct, and we
affirm this conclusion. ID at 30.10
similar offenses differently. Id., ¶ 14. To the extent the administrative judge
relied on Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010), for
the proposition that similarity in misconduct between the appellant and the
comparator(s) was sufficient to shift the burden to the agency to explain the
difference in treatment, the Board overruled that case in Singh. Singh,
2022 MSPB 15, ¶¶ 9-11, 14. Nonetheless, we agree with the administrative
judge’s ultimate determination that the appellant did not establish that any
employee engaged in the same or similar offenses for the reasons set forth in the
initial decision, and thus the reliance on Lewis was immaterial. ID at 34-36.
Based on the foregoing, we conclude that the agency considered all
relevant factors and exercised management discretion within the tolerable limits
of reasonableness.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
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.11
Please read carefully each of the three main possible 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. 12
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 13
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Egge_ShanonDE-0752-20-0087-I-1_Final_Order.pdf | 2024-09-05 | SHANON EGGE v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DE-0752-20-0087-I-1, September 5, 2024 | DE-0752-20-0087-I-1 | NP |
570 | https://www.mspb.gov/decisions/nonprecedential/Ford_Alicia_L_DC-0752-20-0158-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALICIA LOUISE FORD,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-0752-20-0158-I-2
DATE: September 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Marc J. Smith , Esquire, Rockville, Maryland, for the appellant.
John W. Montgomery , Esquire, Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the appellant failed to demonstrate
a due process violation.
The appellant argues that the agency violated her due process rights when
both the proposing and deciding official considered information not included in
its notice of proposed removal. Petition for Review (PFR) File, Tab 3 at 12-17.
The administrative judge addressed this issue and found that the appellant failed
to prove by preponderant evidence that a due process violation occurred. Refiled
Appeal File (RAF), Tab 8, Initial Decision (ID) at 10-13. We agree with the
administrative judge’s conclusion.2
2 Although unclear, to the extent the administrative judge applied a harmful error
analysis to the due process question, we find this was erroneous. ID at 13 (finding that
the appellant failed to show how the outcome would have been different in the absence
of the alleged due process violation). The determination as to whether a due process
violation occurred is not subject to a harmful error analysis. Stone v. Federal Deposit
Insurance Corporation , 179 F.3d 1368, 1377 (Fed. Cir. 1999). However, as set forth
below, because we agree with the administrative judge that no due process violation
occurred, any error by the administrative judge was immaterial. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision). 2
The appellant failed to demonstrate that the deciding official
violated her due process rights.
Procedural due process guarantees are not met if the employee has notice of
only certain charges or portions of the evidence and the deciding official
considers new and material information not included in the proposal; therefore, it
is constitutionally impermissible to allow a deciding official to receive additional
material information that may undermine the objectivity required to protect the
fairness of the process. Stone v. Federal Deposit Insurance Corporation ,
179 F.3d 1368, 1376 (Fed. Cir. 1999). However, not every ex parte
communication is a procedural defect so substantial and so likely to cause
prejudice that it undermines the due process guarantee and entitles the claimant to
an entirely new administrative proceeding; rather, only ex parte communications
that introduce new and material information to the deciding official will violate
the due process guarantee of notice. Id. at 1376-77. There is nothing inherently
wrong with a deciding official having background knowledge of an employee’s
prior work history or performance record. Norris v. Securities & Exchange
Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012). A deciding official’s
knowledge of an employee’s background only raises due process concerns when
that knowledge is a basis for the deciding official’s determinations on either the
merits of the underlying charge or the penalty to be imposed. Id.
The appellant argues that the deciding official considered ex parte
information regarding the appellant’s job performance. Initial Appeal File (IAF),
Tab 12 at 9-12; PFR File, Tab 3 at 13. She further argues that the Douglas
factors worksheet attached to her removal decision contained new and material
information not contained in the notice of proposed removal, such as a suggestion
that the appellant’s performance was not satisfactory and that she repeatedly
made disparaging remarks about coworkers and supervisors. PFR File, Tab 3
at 13-14; see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 -06 (1981)
(setting forth the factors relevant for consideration in determining the3
appropriateness of a penalty). The administrative judge credited the deciding
official’s testimony that the Douglas factors sheet was an erroneous draft and
that, as reflected in the written removal decision, she considered only the proper
charge and relevant factors. ID at 13. The Board must defer to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on observing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002).
The Board must give “special deference” to an administrative judge’s
demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly
discussed.” Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373
(Fed. Cir. 2016).
At the hearing, the deciding official testified that numerous comments and
errors on the Douglas factors worksheet were included by mistake due to
copy-and-paste errors and using a previous Douglas factors worksheet. RAF,
Tab 7, Hearing Recording (HR) 2 at 52:00 (testimony of the deciding official).
She further testified that she had a question as to whether the appellant’s
performance was acceptable, but upon further inquiry, she determined it was
acceptable and considered it a mitigating factor. HR 2 at 1:34:00 (testimony of
the deciding official); IAF, Tab3 at 14. Finally, the deciding official testified that
the Douglas factors worksheet was an unfinished draft and that the decision letter
was a more accurate reflection of the aggravating and mitigating factors she
considered in removing the appellant. HR 2 at 1:45:00 (testimony of the deciding
official). Although the Douglas factors worksheet incorrectly addressed the
appellant’s 28 years of service as aggravating, the decision letter indicates that4
the deciding official properly considered this as mitigating in the final analysis.3
IAF, Tab 3 at 8, 13. Similarly, although a question was raised as to whether the
appellant’s performance was aggravating or mitigating, the deciding official
properly considered it as mitigating in the removal decision. Id. at 8, 14.
On review, the appellant argues that a “reasonable inference” can be drawn
that the deciding official’s removal decision was influenced by her perception of
the appellant’s job performance, which was influenced by negative information
from an agency human resources manager. PFR File, Tab 3 at 13, 16. She
further argues that, based on the reference to prior disparaging remarks made by
the appellant on the Douglas factors worksheet, “it is readily apparent” that this
information influenced the deciding official’s removal decision. Id. at 16. The
appellant’s mere suggestion to the contrary, without more, does not demonstrate
sufficiently sound reasons for disturbing the administrative judge’s credibility
determination that the deciding official did not consider any of the erroneous
information contained on the Douglas factors sheet. See Purifoy, 838 F.3d
at 1372-73; Haebe, 288 F.3d at 1301. Accordingly, we find no reason to disturb
the administrative judge’s conclusion, which is based in large part on the removal
decision itself and the deciding official’s credible testimony that the appellant
failed to prove by preponderant evidence that the deciding official impermissibly
considered ex parte information in making her removal determination.4 ID at 13;
see Norris, 675 F.3d at 1354 (finding that a deciding official’s knowledge of an
employee’s background or performance record only raises due process concerns
when that information is a basis for making a determination on the merits or the
penalty).
3 It is improper for an agency to view an appellant’s lengthy tenure as an aggravating,
rather than mitigating, factor because she “should have known better”; the Board does
not endorse an approach under which the longer a person works, the more likely it is
that a single misstep will be fatal to her career. Shelly v. Department of the Treasury ,
75 M.S.P.R. 677, 684 (1997).
4 All mitigating and aggravating factors referenced in the decision letter were
previously set forth in the proposed removal. IAF, Tab 3 at 7-11, 31-35. 5
The appellant failed to demonstrate that the proposing official
violated her due process rights.
The appellant additionally argues on review that the proposing official
received numerous ex parte communications prior to issuing the notice of
proposed removal, including that the appellant was suspected of leaving work
early, had unacceptable performance, had previously sent inappropriate emails,
and had difficulty working with people. PFR File, Tab 3 at 12. The
administrative judge found that the appellant failed to present evidence that this
information obtained by the proposing official was passed on or otherwise
considered by the deciding official. ID at 12.
Typically, impermissible ex parte communications involve a deciding
official learning of, or otherwise knowing, negative information about an
appellant not referenced in a proposal notice. See Ward v. U.S. Postal Service ,
634 F.3d 1274, 1278 (Fed. Cir. 2011) (considering the deciding official’s ex parte
communications with three supervisors and one manager during which he learned
of several alleged past instances of misconduct by the appellant); Stone, 179 F.3d
at 1372-73 (considering ex parte memoranda received by the deciding official
from the proposing official and another agency official urging the appellant’s
removal); Lopes v. Department of the Navy , 116 M.S.P.R. 470, ¶ 10 (2011)
(finding a due process violation when the deciding official considered misconduct
not mentioned in the notice of proposed removal but personally known to the
deciding official). Here, the proposing official testified that he received negative
information from other agency employees about the appellant that “of course”
gave him an opinion and became a part of the narrative in determining the
penalty. HR 5 at 27:00 (testimony of the proposing official). He further testified
that he did his best to separate out the facts of this case from others’ opinions of
the appellant but that you cannot “un-know what you know.” HR 5 at 27:30
(testimony of the proposing official). However, there is no evidence that the
information learned by the proposing official was relayed to the deciding official.6
This case is therefore distinguishable from precedent like Ward, Stone, and Lopes
in that there is no evidence that the impermissible evidence was passed on to or
considered by the deciding official.
Moreover, the appellant has failed to cite, and we have been unable to find,
any case finding a due process violation involving ex parte information solely
obtained and considered by a proposing official. In the absence of evidence that
such information was passed to the deciding official, we find no impermissible
due process violation.
The essential requirements of due process are notice and an opportunity to
respond. Stone, 179 F.3d at 1375 (quoting Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 542-46 (1985)). Indeed, the “Supreme Court expressly
noted that the need for a meaningful opportunity for the public employee to
present his or her side of the case is important in enabling the agency to reach an
accurate result . . . not only to the issue of whether the allegations are true, but
also with regard to whether the level of penalty to be imposed is appropriate.”
Stone, 179 F.3d at 1476 (citing Loudermill, 470 U.S. at 543). The appellant here
was given notice of the charges and factors considered in enacting her removal by
the deciding official, and she was able to respond both about the truth of the
charges and the appropriateness of the penalty. IAF, Tab 3 at 21-29.
Accordingly, the appellant was provided with the essential due process
requirements, and any information obtained by the proposing official prior to
issuing the proposal that was not passed on or considered by the deciding official
did not undermine the objectivity required to protect the fairness of the process.
See Stone, 179 F.3d at 1377 (finding that the ultimate inquiry is whether an ex
parte communication is “so substantial and so likely to cause prejudice that no
employee can fairly be required to be subjected to a deprivation of property under
such circumstances”).5
5 Because we agree with the administrative judge’s findings that the deciding official
did not consider ex parte information, we also conclude that the appellant failed to
establish that an error occurred, and thus her arguments also fail under a harmful7
The appellant’s remaining arguments on review are unpersuasive.
The appellant additionally argues that the administrative judge abused her
discretion when she declined to afford any weight to the deciding official’s
Douglas factors worksheet. PFR File, Tab 3 at 10-12. The appellant’s argument
is effectively a reframing of the argument that the deciding official improperly
applied the Douglas factors in reaching her removal decision. Id. As discussed
above, the administrative judge credited the deciding official’s testimony that,
despite the clear errors in the worksheet, she properly considered the relevant
aggravating and mitigating factors on review. ID at 12-13. Thus, we interpret the
administrative judge as finding that the Douglas factors worksheet was “not
entitled to much weight or consideration.” ID at 13. We note, however, that the
administrative judge also stated that, due to the errors on the worksheet, it was
“not entitled to any weight.” ID at 14. Nonetheless, we find that this distinction
does not provide a sufficiently sound reason to disturb the administrative judge’s
determination that the deciding official properly considered the relevant factors
based in large part on the credibility of the deciding official’s testimony . ID
at 13; see Haebe, 288 F.3d at 1301 (finding that the Board may overturn
credibility determinations only when it has “sufficiently sound” reasons for doing
so). Moreover, as set forth above, we agree with the administrative judge that the
deciding official properly considered the relevant factors in issuing the removal
decision. IAF, Tab 3 at 8-9; ID at 13.
The appellant further asserts that the agency committed harmful procedural
error when it failed to provide all of the materials relied upon in support of its
charge against the appellant. PFR File, Tab 3 at 8-10. Specifically, the appellant
asserts that the agency failed to provide the proposing official’s handwritten notes
from the meeting that led to her removal. Id. The administrative judge addressed
procedural error theory. Cf. Ward, 634 F.3d at 1281 -83 (instructing that, when
consideration of ex parte communications has occurred but that consideration does not
rise to the level of a due process violation, the Board still must consider whether the
agency’s procedural error constituted harmful error).8
this argument and found that the deciding official did not receive or rely on any
handwritten notes in reaching her removal decision. ID at 11. Thus, the notes
were not part of the materials relied upon by the agency in supporting its charge
against the appellant. Moreover, the administrative judge found that the appellant
failed to show how, had she been given the handwritten notes, the agency would
have reached a conclusion different from the one it would have reached absent
any error. ID at 10-11. The appellant’s petition for review merely resubmits
arguments on this issue that she raised with the administrative judge. IAF,
Tab 12 at 6-7; PFR File, Tab 3 at 8-10. The appellant has not identified any error
on the part of the administrative judge; she merely seeks a different outcome on
review. We find her arguments unpersuasive and decline to disturb the
administrative judge’s findings.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain10
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 11
If you submit a request for review 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.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Ford_Alicia_L_DC-0752-20-0158-I-2_Final_Order.pdf | 2024-09-05 | ALICIA LOUISE FORD v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-0752-20-0158-I-2, September 5, 2024 | DC-0752-20-0158-I-2 | NP |
571 | https://www.mspb.gov/decisions/nonprecedential/McGowan_Charles_P_DA-0432-14-0458-I-2__2896587.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHARLES MCGOWAN,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DA-0432-14-0458-I-2
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew R. Young , Esquire, Cristabel Jimenez , Esquire, and Ellen
Sprovach , Esquire, Houston, Texas, for the appellant.
Julieanna Walker , New Orleans, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal of the appellant for unacceptable performance.
For the reasons set forth below, the appellant’s petition for review is DISMISSED
as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2 The administrative judge issued an initial decision on April 27, 2023,
affirming the agency’s removal of the appellant from the position of Supervisory
Program Analyst for unacceptable performance. McGowan v. Department of
Agriculture, MSPB Docket No. DA-0432-14-0458-I-2, Appeal File, Tab 32,
Initial Decision (ID). The initial decision advised the appellant that the deadline
to file a petition for review was June 1, 2023, and provided information as to how
to file a petition for review. ID at 41-42.
¶3 On June 1, 2023, the appellant’s attorney emailed the Dallas Regional
Office and attached a petition for review. Petition for Review (PFR) File, Tab 6
at 5. That email was forwarded to the Office of the Clerk of the Board. Id. at 8.
The appellant’s attorney was informed in a June 2, 2023 email from the Office of
the Clerk of the Board that the petition for review had to be filed by an acceptable
method, i.e., electronically through e-Appeal, or by mail, facsimile, or
commercial delivery. Id. The email also stated that no further action would be
taken in response to the attorney’s email and attachment. Id. The appellant,
through his attorney, eventually filed a petition for review by facsimile on June 8,
2023. PFR File, Tab 3 at 49. The Board’s acknowledgment letter identified
June 8, 2023, as the filing date and provided information as to how to file a
motion to accept the filing as timely or to waive the time limit for good cause.
PFR File, Tab 4 at 1-2. In response, the appellant’s attorney argues that she
instructed her staff to file the petition for review on June 2, 2023, but that they
failed to file it until June 8, 2023. PFR File, Tab 6 at 6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
30 days after the date the appellant received the initial decision. 5 C.F.R.2
§ 1201.114(e). It is the appellant’s burden of proof, by a preponderance of the
evidence, to establish the timeliness of his petition for review. 5 C.F.R.
§ 1201.56(b)(2)(B); see McPherson v. Department of the Treasury , 104 M.S.P.R.
547, ¶ 4 (2007). Under the Board’s regulations, a pleading, such as a petition for
review, may be filed by mail, facsimile, commercial or personal delivery, or
electronic filing. 5 C.F.R. § 1201.4(i). E-Appeal is the exclusive system for
electronic filing with the Board. 5 C.F.R. § 1201.14(d) (2023). The Board will
not accept pleadings by email. Id.
¶5 Here, as discussed above, the deadline to file the appellant’s petition for
review was June 1, 2023. ID at 41-42. After a June 1, 2023 email from the
Office of the Clerk of the Board informed the appellant’s representative that the
petition for review sent via email would not be processed, in accordance with
5 C.F.R. § 1201.14(d) (2023), the appellant filed his petition for review via an
acceptable means of submission on June 8, 2023. PFR File, Tab 1, Tab 6 at 8.
Thus, the petition for review was 7 days late.
¶6As the appellant filed his petition for review late, the issue is whether he
established good cause to waive the time limit. The Board will waive a petition
for review filing deadline only upon a showing of good cause for the delay in
filing. 5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing of
a petition for review, a party must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Rivera v.
Social Security Administration , 111 M.S.P.R. 581, ¶ 4 (2009) (citing Alonzo v.
Department of the Air Force , 4 M.S.P.R. 180, 184 (1980)). To determine whether
an appellant has shown good cause, the Board will consider the length of the
delay, the reasonableness of his excuse and his showing of due diligence, whether
he is proceeding pro se, and whether he has presented evidence of the existence
of circumstances beyond his control which affected his ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to his inability to timely file his petition. Rivera,3
111 M.S.P.R. 581, ¶ 4 (citing Moorman v. Department of the Army , 68 M.S.P.R.
60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table)).
¶7 In the appellant’s motion to waive the time limit, the appellant’s attorney
argues that the late submission of the petition for review was not due to the fault
of the appellant. PFR File, Tab 6 at 6. However, the Board has held that a claim
of inadequate representation does not furnish good cause for waiver of the
Board’s time limits because an appellant is responsible for the actions or
inactions of his chosen representative. Edmundson v. Department of Justice ,
73 M.S.P.R. 267, 270 (1997 ); see Sofio v. Internal Revenue Service , 7 M.S.P.R.
667, 670 (1981) (stating that an appellant is responsible for the errors of his
representative). Furthermore, to the extent that the appellant’s attorney argues
that she believed that email was an acceptable means to file, the Board has held
that the appellant’s representative’s erroneous legal belief does not establish good
cause for a filing delay. Hairston v. Department of Defense , 119 M.S.P.R. 162,
¶ 18 (2013), modified on other grounds by Buelna v. Department of Homeland
Security, 121 M.S.P.R. 262, ¶ 18 n.7 (2014).
¶8 As a limited exception to the rule in Edmundson, good cause may be shown
for a filing delay if the appellant shows that he actively monitored the progress of
his appeal but that his representative thwarted his diligent efforts to pursue the
appeal. Edmundson, 73 M.S.P.R. at 270. Here, the appellant does not meet the
limited exception because he did not allege that he actively monitored the
progress of his petition for review or that he inquired about whether it had been
filed in the period between the due date (June 1, 2023) and the actual date of
filing (June 8, 2023).
¶9 Also, in the appellant’s motion to waive the time limit, the appellant’s
attorney acknowledges that she received an email from the Board on June 2,
2023, informing her that the June 1, 2023 filing via email was not acceptable.
PFR File, Tab 6 at 5-6. In the motion, the attorney further explained that she then
sent a directive to her administrative staff to fax the petition for review to the4
Board. Id. at 6. On June 8, 2023, she learned that the petition for review had not
yet been filed and subsequently filed it the same day. Id. The argument asserted
by the appellant’s attorney —that a mistake by the attorney’s staff caused the
filing delay—does not ordinarily excuse an attorney’s failure to meet the filing
deadline.2 See Freeman v. Office of Personnel Management , 58 M.S.P.R. 337,
339 (1993) (finding that a “miscommunication among members of an attorney’s
support staff” did not establish good cause for a 3-day delay in filing a petition
for review); see also Moore v. Department of the Treasury , 41 M.S.P.R. 35, 37
(1989) (finding that a clerical error by the appellant’s attorney’s support staff did
not constitute good cause for the untimely filing of a petition for review). Her
failure to follow up with her staff for 6 days after having been notified that she
was already late filing the appellant’s petition for review shows a lack of due
diligence.
¶10 As stated above, the petition for review was filed 7 days late. While this
delay is not particularly long, it is not trivial. See Pace v. Office of Personnel
Management, 113 M.S.P.R. 681, ¶¶ 5, 11 (2010) (finding that a 6-day delay in
filing a petition for review is not minimal); see also Gonzalez v. Department of
Veterans Affairs , 111 M.S.P.R. 697, ¶ 11 (2009) (finding that an 8-day delay in
filing a petition for review is not minimal). In any event, the Board has
consistently denied waiver of the filing deadline in the absence of good cause for
the filing delay, even when the delay is minimal and the petitioning party is pro
se. Pace, 113 M.S.P.R. 681, ¶ 11. Here, of course, the appellant is represented
by an attorney.
¶11 Based on the analysis set forth above, we dismiss the petition for review as
untimely filed without good cause shown for the delay. This is the final decision
of the Merit Systems Protection Board concerning the timeliness of the
2 In Dunbar v. Department of the Navy , 43 M.S.P.R. 640, 642-44 (1990 ), the Board
found good cause for the untimely filing of an appeal when the appellant’s attorney’s
secretary intentionally failed to file the appeal despite being instructed to file it. There
is no suggestion of such deliberate defiance in this appeal. 5
appellant’s petition for review. The initial decision remains the final decision of
the Board concerning the merits of the appeal. 5 C.F.R. § 1201.113(c).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | McGowan_Charles_P_DA-0432-14-0458-I-2__2896587.pdf | 2024-09-04 | CHARLES MCGOWAN v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-0432-14-0458-I-2, September 4, 2024 | DA-0432-14-0458-I-2 | NP |
572 | https://www.mspb.gov/decisions/nonprecedential/Habet_Sam_DC-0432-20-0758-I-1_DC-0432-20-0758-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAM HABET,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0432-20-0758-I-2
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Sam Habet , Frederick, Maryland, pro se.
Keian Weld , Esquire, Susan M. Andorfer , Esquire, Andrea M. Downing ,
and Shomar M. Searchwell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his refiled removal appeal without prejudice to refiling. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain3
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 4
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Habet_Sam_DC-0432-20-0758-I-1_DC-0432-20-0758-I-2_Final_Order.pdf | 2024-09-04 | SAM HABET v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DC-0432-20-0758-I-2, September 4, 2024 | DC-0432-20-0758-I-2 | NP |
573 | https://www.mspb.gov/decisions/nonprecedential/Fletcher_DavidSF-0752-18-0655-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID FLETCHER,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-18-0655-I-1
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Aaron D. Wersing , Esquire, and Stephen Goldenzweig , Esquire, Houston,
Texas, for the appellant.
Carley D. Bell , Esquire, Arlington, Virginia, for the agency.
William R. Fenner , Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal from his Federal Air Marshal position based on five
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
charges of misconduct: off-duty misconduct, unauthorized disclosure of sensitive
security information, failure to follow the Federal Air Marshal Service Medical
Programs Service Policy, submission of inaccurate time and attendance reports,
and lack of candor. On petition for review, the appellant argues, among other
things, that the agency failed to prove its off-duty misconduct charge and the lack
of candor charge. The appellant did not contest the administrative judge’s
findings that the agency proved its other charges, that the appellant failed to
prove his affirmative defenses,2 that the agency established the existence of a
nexus between the sustained charges and the efficiency of the service, and that
the penalty of removal was reasonable. 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).
2 In analyzing the appellant’s sex discrimination claim, the administrative judge
identified the legal standard set forth in Savage v. Department of the Army ,
122 M.S.P.R. 612 (2015), discussed the various methods of direct and circumstantial
evidence, and concluded that the appellant did not prove that his sex was a motivating
factor in the removal decision. Initial Appeal File, Tab 61, Initial Decision (ID) at 52-
55. The Board has since overruled Savage to the extent that it held that the McDonnell
Douglas framework is not applicable to Board proceedings. Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 25 (citing McDonnell Douglas Corporation
v. Green, 411 U.S. 792, 802-04 (1973)). Nonetheless, the outcome of this appeal under
Pridgen would be the same as that arrived at by the administrative judge. Under
Pridgen, to obtain any relief, the appellant must still show, at a minimum, that the
prohibited consideration was a motivating factor in the agency’s decision to remove
him, Pridgen, 2022 MSPB 31, ¶¶ 20-22, and we agree with the administrative judge that
the appellant failed to make this showing, ID at 52-55. Because the appellant did not
prove that his sex was a motivating factor, he necessarily did not prove it was a “but-
for” cause of his removal. Pridgen, 2022 MSPB 31, ¶ 22.2
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the
U.S. Court of Appeals for the Federal Circuit, which must be received by the
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on4
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 15106
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Fletcher_DavidSF-0752-18-0655-I-1_Final_Order.pdf | 2024-09-04 | DAVID FLETCHER v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-18-0655-I-1, September 4, 2024 | SF-0752-18-0655-I-1 | NP |
574 | https://www.mspb.gov/decisions/nonprecedential/Haller_Derik_F_CB-7121-20-0002-V-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DERIK F. HALLER,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
CB-7121-20-0002-V-1
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Heidi R. Burakiewicz , Esquire, and Robert DePriest , Esquire, Washington,
D.C., for the appellant.
Megan E. Gagnon , Esquire, Detroit, Michigan, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a request for review of an arbitration decision that
sustained the agency’s decision to remove him. For the reasons discussed below,
we GRANT the appellant’s request for review under 5 U.S.C. § 7121(d),
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
REVERSE the arbitrator’s finding that the agency proved its charge, and ORDER
the agency to cancel the appellant’s removal.
BACKGROUND
¶2The appellant was employed as a cartographer, GS-12, with the U.S.
Customs and Border Protection, Office of Border Patrol. Request for Review
(RFR) File, Tab 7 at 108. Part of his duties required him to respond to requests to
provide cartographic, analytical, and data management services, advice
and support, and to do so on immediate deadlines. Id. at 110-11. On
November 7, 2017, following a series of attendance and leave-related issues, the
agency issued the appellant a leave restriction memorandum requiring him to
submit a Standard Form (SF) 71 with a medical certificate for all sick leave
requested due to illness, and informing him of what he was required to obtain in
order for his medical documentation to be deemed satisfactory. Id. at 125-27.
Specifically, the memorandum required that the appellant’s medical
documentation include his name, a statement that he was incapacitated for duty
and why reporting for duty was inadvisable, the nature of the incapacitation, the
duration of incapacitation and dates of office visits, and a physician’s signature,
address, and telephone number. Id. at 126-27. The memorandum also informed
him that, if necessary, additional information may be requested in support of any
final decision to approve or deny leave. Id. at 127. It stated that the requirements
would be effective for 6 months. Id. at 126. Approximately 6 months later,
following more attendance and leave-related issues, the agency extended the
requirements of the November 7, 2017 memorandum. Id. at 149.
¶3On Friday, July 6, 2018, the appellant called his supervisor stating that he
did not feel well and requesting sick leave for the day. RFR File, Tab 6 at 140
(testimony of the appellant), Tab 7 at 161. The supervisor provisionally granted
the appellant’s sick leave request and reminded him of the requirement that he
provide acceptable medical documentation to support his absence. RFR File,2
Tab 7 at 162. On Monday, July 9, 2018, the appellant again requested sick leave
and was reminded of the requirement to provide acceptable medical information
for both his July 6 and July 9 absences. Id. On July 10, 2018, the appellant
called his supervisor stating that he was still ill, had medical documentation
supporting his requests for sick leave, and had been diagnosed with an ear
infection. Id.
¶4The next day, July 11, 2018, the appellant reported for duty and provided
his supervisor with medical documentation from an urgent care facility, wherein a
Certified Nurse Practitioner (CNP) indicated that the appellant had been seen in
her urgent care facility on July 9, 2018, and requested that he be excused from
work on July 9 and July 10, 2018. Id. at 162, 164. Because the documentation
did not address the appellant’s absence on July 6, 2018, the appellant’s supervisor
asked him if he had any additional documentation related to that day and further
indicated that the medical documentation was not sufficient to meet the
requirements of the leave restriction memorandum for July 9 and July 10, 2018,
because it failed to identify the nature of his incapacitation and to explain why
reporting to work was inadvisable. Id. at 162-63. According to the appellant, he
returned to the urgent care facility to request further documentation. RFR File,
Tab 6 at 143 (testimony of the appellant). He testified at the arbitration hearing
that the only additional medical documentation the urgent care facility provided
him with was the administrative notes from his visit on July 9, 2018,
which reflected that his symptoms had begun on July 4, 2018. Id.; RFR File,
Tab 7 at 165-69.
¶5On July 17, 2018, the appellant submitted a memorandum to his supervisor
explaining his absence on July 6, 2018. RFR File, Tab 7 at 161. It does not
appear that agency management responded to the appellant’s memorandum, but
on July 19, 2018, the appellant’s supervisor sent a memorandum to the
Acting Patrol Agent in Charge, summarizing the appellant’s absences from
July 6 through July 10, 2018, and indicating that the additional medical3
documentation still did not meet the requirements outlined in the leave
restriction memorandum. Id. at 163. The appellant’s supervisor also claimed in
the July 19, 2018 memorandum that he had informed the appellant that he would
be carried in “absence without leave” (AWOL) status for July 6, 9, and 10, 2018.
Id.
¶6Three months later, the agency proposed the appellant’s removal based on a
single specification of AWOL and a single specification of failure to follow leave
restriction instructions. RFR File, Tab 8 at 4. Both charges related only to the
appellant’s absence on July 6, 2018; he was not charged with any absence-related
misconduct for July 9 and July 10. Id. Following the appellant’s written and oral
replies, the deciding official sustained both charges and, citing the appellant’s
history with time and attendance issues, removed the appellant from Federal
service. Id. at 23.
¶7The appellant’s union grieved the removal action and invoked arbitration on
his behalf, arguing as follows: (1) the agency could not prove the charged
misconduct because the appellant provided sufficient medical documentation as
instructed by the leave restriction memorandum and because he was charged sick
leave and paid for the day in question; (2) the charges of AWOL and failure to
follow leave restriction instructions should be merged because they are based on
the same facts and issues; (3) the agency violated his due process rights when it
improperly considered alleged misconduct that occurred on June 20, 2018, in the
final decision but failed to discuss that incident in the proposal; (4) the agency
engaged in disparate treatment disability discrimination and failed to
accommodate his disability; and (5) the penalty of removal was unreasonable.
RFR File, Tab 6 at 208-11, 218-51; Tab 8 at 27-28.
¶8Following an arbitration hearing, the arbitrator issued an opinion and award
sustaining the appellant’s removal. RFR File, Tab 6 at 282-314. He declined to
merge the charges and found that the agency proved both charges by preponderant
evidence. Id. at 303-06. Specifically, he found that the appellant was required to4
go to the doctor for each “sick day event,” and that because he failed to do so, and
also failed to provide adequate medical documentation, the agency established
that he violated the leave restriction memorandum’s requirements. Id. at 303-04.
He further found that the appellant failed to establish his affirmative defenses of
an alleged due process violation and disability discrimination, and that his
removal promoted the efficiency of the service and was reasonable. Id. at 305-06,
312-14.
¶9The appellant has requested review of the arbitrator’s opinion and award.
RFR File, Tabs 1, 5. He argues that the arbitrator misinterpreted civil service
sick leave requirements and incorrectly added a “nonexistent” requirement that
the appellant was required to go to his doctor on July 6, 2018. RFR File, Tab 5
at 10-11, 31-33. He also reasserts his claims that his medical documentation was
sufficient and that he was charged sick leave and was paid for his July 6, 2018
absence. Id. at 29-31. He reiterates his claim that the charges should have been
merged and his affirmative defenses of an alleged due process violation, disparate
treatment disability discrimination, and failure to accommodate disability
discrimination, and he claims that the arbitrator misapplied the Douglas factors.
Id. at 11-15, 33-47. The agency has responded in opposition to the appellant’s
request. RFR File, Tab 15.
ANALYSIS
¶10The Board has jurisdiction to review an arbitrator’s decision under
5 U.S.C. § 7121(d) when the subject matter of the grievance is one over which the
Board has jurisdiction, the appellant has alleged discrimination under 5 U.S.C.
§ 2302(b)(1) in connection with the underlying action, and a final decision has
been issued. Sadiq v. Department of Veterans Affairs , 119 M.S.P.R. 450, ¶ 4
(2013). Each condition is satisfied in this case. The appellant’s removal is within
the Board’s jurisdiction. 5 U.S.C. §§ 7512(1), 7513(d). The appellant alleged in
his grievance and during arbitration that he was subjected to discrimination on the
basis of his disability when the agency treated him differently than other5
employees who did not suffer from alcoholism. RFR File, Tab 6 at 245-51; Tab 8
at 27. The arbitrator issued a September 24, 2019 final decision regarding the
appellant’s grievance of his removal. RFR File, Tab 6 at 282-314. Thus, we find
that the Board has jurisdiction over the request for review. See Sadiq,
119 M.S.P.R. 450, ¶ 4.
¶11The Board’s review of an arbitrator’s award is limited; such awards are
entitled to a greater degree of deference than initial decisions issued by the
Board’s administrative judges. Id., ¶ 5. The Board will modify or set aside such
an award only when the arbitrator has erred as a matter of law in interpreting a
civil service law, rule, or regulation. Id. Even if the Board disagrees with an
arbitrator’s decision, absent legal error, the Board cannot substitute its
conclusions for those of the arbitrator. Id. Thus, the arbitrator’s factual
determinations are entitled to deference unless the arbitrator erred in his legal
analysis, for example, by misallocating the burdens of proof or employing the
wrong analytical framework. Id. Nevertheless, the Board can defer to the
arbitrator’s findings and conclusions only if the arbitrator makes specific findings
on the issues in question. Id. Further, the Board may make its own findings
when the arbitrator failed to cite any legal standard or employ any analytical
framework for his evaluation of the evidence. Id.
The arbitrator erred in not merging the charges.
¶12As noted above, the agency charged the appellant with AWOL and failure to
follow leave restriction instructions. RFR File, Tab 8 at 4, 23. Before the
arbitrator, the appellant argued that because the charges were both based on his
July 6, 2018 absence, they should have been merged. RFR File, Tab 6 at 222-24.
In the opinion and award, the arbitrator stated that, “[e]ven if the offenses
overlap, prejudice to [the appellant] was not established. The charges, either
individually or together, provide a basis for the [agency’s] action in this case.
Moreover, there does seem to be a distinction between the two charges.”6
RFR File, Tab 6 at 305-06. The appellant raises this issue again in his request for
review. RFR File, Tab 5 at 46-47. Because the arbitrator failed to fully and
adequately determine whether the charges should be merged, we make our own
findings on this issue. See Sadiq, 119 M.S.P.R. 450, ¶ 5.
¶13The Board will “merge” charges if they are based on the same conduct and
proof of one charge automatically constitutes proof of the other charge. Powell
v. U.S. Postal Service , 122 M.S.P.R. 60, ¶ 10 (2014). In the context of AWOL
and failure to follow instructions of a leave restriction letter charges, the Board
has held that, when both charges are based on the same underlying conduct and an
appellant’s failure to follow instructions and provide the medical documentation
caused him to be AWOL, the charges merge. See Jones v. Department of Justice ,
98 M.S.P.R. 86, ¶ 16 (2004), review dismissed , 125 F. App’x 1006 (Fed. Cir.
2005). Here, the agency charged the appellant with AWOL on July 6, 2018,
because he failed to provide adequate medical documentation regarding his
absence on that date pursuant to the leave restriction letter. RFR File, Tab 8 at 4,
23. The agency also charged him with failure to follow the leave restriction letter
on that same date. Id. Therefore, we find that it is appropriate to merge the
failure to follow leave restriction instructions charge into the AWOL charge. See
McNab v. Department of the Army , 121 M.S.P.R. 661, ¶ 4 n.3 (2014) (finding that
the administrative judge properly merged into the AWOL charge specific
instances of failure to follow leave restriction letter procedures that were also
listed under the AWOL charge); Westmoreland v. Department of Veterans Affairs ,
83 M.S.P.R. 625, ¶ 6 (1999) (merging charges of failure to follow
leave-requesting procedures into the charge of AWOL when the charge of AWOL
was based solely on the appellant’s failure to follow the leave requesting
procedures), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds
as recognized in Pickett v. Department of Agriculture , 116 M.S.P.R. 439, ¶ 11
(2011). Because the failure to follow the leave restriction letter charge merges
into the AWOL charge, proof of the AWOL charge will constitute proof of the7
failure to follow the leave restriction letter charge. See Powell, 122 M.S.P.R. 60,
¶ 10.
Regardless of whether the appellant’s medical documentation was sufficient to
justify his absence on July 6, 2018, the arbitrator failed to make a material
finding of fact regarding whether the agency denied the appellant sick leave for
that day.
¶14To prove a charge of AWOL, an agency must show by preponderant
evidence that the employee was absent without authorization and, if the employee
requested leave, that the request was properly denied. Savage v. Department of
the Army, 122 M.S.P.R. 612, ¶ 28 (2015), overruled in part on other grounds by
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 25. Regarding
the first requirement, the arbitrator concluded that the agency proved that the
appellant violated the requirement of the leave restriction memorandum that he
obtain medical documentation for his July 6, 2018 absence and was, therefore,
absent without authorization. RFR File, Tab 6 at 303-04. He appears to have
based this conclusion on two findings: (1) the leave restriction memorandum
required the appellant to visit a doctor for “each sick day event,” and the
appellant failed to go to the doctor when he called in sick on July 6, 2018; and
(2) the appellant’s medical documentation was otherwise inadequate because the
July 9, 2018 letter from the CNP excused only his absences from July 9 and 10,
2018, and the administrative notes from his July 9, 2018 visit to the urgent care
facility “represent[] a description of [the appellant’s] complaint, not a medical
diagnosis.” Id. at 303-04.
¶15In his request for review, the appellant argues that the arbitrator applied an
“incorrect and overly burdensome standard for using sick leave that imposed an
obligation beyond the requirements of 5 C.F.R. § 630.401(a) and [his] leave
restriction letter.” RFR File, Tab 5 at 29. He argues that, when an employee
provides sufficient medical documentation and he has sick leave available, an
agency must grant sick leave. Id. He asserts that the arbitrator violated civil
service law when he determined that the appellant was required to visit a doctor8
each sick day because the Federal regulation governing the granting of sick leave
imposes no such requirement. Id. at 31-33. He also claims that his medical
documentation was sufficient. Id. at 30.
¶16We agree with the appellant that neither Federal regulation nor his leave
restriction memorandum required that he visit the doctor on each sick day. See
5 C.F.R. §§ 630.401, 630.405; RFR File, Tab 7 at 126-27, 149-50. However, the
arbitrator’s determination that the agency proved the charges is also based on his
finding that the appellant’s sick leave documentation was not sufficient because it
did not specifically address his illness on July 6, 2018, or contain a medical
diagnosis. RFR File, Tab 6 at 303-04. The appellant’s argument that his medical
documentation was sufficient because he provided an official memorandum
stating that he was sick when he returned to work, a medical note from a CNP
asking that he be excused from duty due to illness on July 9 and July 10, and the
administrative notes reflecting that he had been experiencing symptoms beginning
on July 4, 2018, amounts to a disagreement with the arbitrator’s factual
determinations. RFR File, Tab 5 at 21-22, Tab 6 at 304. Even if we disagreed
with his factual findings, as stated above, we cannot substitute our conclusions
for his because they are entitled to deference unless he erred in his legal analysis.
Sadiq, 119 M.S.P.R. 450, ¶ 5. We discern no legal error in his analysis of the
sufficiency of the medical documentation.
¶17Nonetheless, as discussed above, to prove an AWOL charge, the agency
must also prove that a leave request was properly denied. Savage, 122 M.S.P.R.
612, ¶ 28. Inherent in this burden is the requirement that the agency prove that it
actually denied the leave request at all, regardless of whether the appellant’s
medical documentation was adequate. Before the arbitrator and again in his
request for review, the appellant claims that he was ultimately charged 8 hours of
sick leave for July 6, 2018, and that his paycheck reflected his regular pay for the
pay period including that day. RFR File, Tab 5 at 22-23, Tab 6 at 211. The
arbitrator did not address this material issue in the opinion and award. RFR File,9
Tab 6 at 301-04. Accordingly, we address it here. See Hollingsworth
v. Department of Commerce , 115 M.S.P.R. 636, ¶ 8 (2011) (reasoning that an
arbitrator’s failure to analyze a material issue constitutes legal error, which
permits the Board to make its own findings).
The agency failed to prove that it denied the appellant’s leave
request and, therefore, failed to prove its charge.
¶18In examining the record to determine whether the agency proved that it
denied the appellant’s sick leave request for July 6, 2018, we note that, as an
initial matter, it is undisputed that the appellant’s supervisor provisionally
granted his sick leave request. RFR File, Tab 7 at 162. The question the Board
must decide is whether the agency ever changed that designation to AWOL. We
find there to be contradictory evidence on this point. On the one hand, the
July 19, 2018 memorandum from the appellant’s supervisor to the Acting Patrol
Agent in Charge states that he informed the appellant that he “would be carried in
an AWOL status on July 6, 2018.” RFR File, Tab 7 at 163. We also
acknowledge that the appellant’s time and attendance records show that on July 6,
2018, he was coded as “72,” which is the agency’s code for “absent without pay.”
RFR File, Tab 6 at 138 (testimony of the appellant), Tab 9 at 4, 7-8. Notably, the
appellant’s time and attendance records do not show any code for sick leave.2
RFR File, Tab 9 at 4, 7 -9. On the other hand, the appellant’s earnings and leave
statements for the pay period in question show that he was charged 8 hours of
sick leave. RFR File, Tab 12 at 22. Because this earnings and leave statement
credits the appellant with an 80-hour pay period during which he was otherwise in
regular time, annual leave, or holiday pay, and there is no other record of the
appellant using sick leave during that pay period apart from July 6, 2018, we
conclude that the sick leave charged to the appellant was for July 6, 2018,
consistent with his supervisor’s indication that his sick leave request was
provisionally granted. Id. Moreover, the appellant testified that he did not lose
2 The code for sick leave is “62.” RFR File, Tab 9 at 42. 10
any pay for the relevant pay period. RFR File, Tab 6 at 145-46 (testimony of the
appellant). This unrebutted testimony is supported by documentation from his
credit union showing the same salary amount deposited for the pay period in
question and the previous pay period.3 RFR File, Tab 12 at 24. The appellant’s
receipt of full pay for the pay period is consistent with a finding that his
attendance status was never changed to AWOL, which would have prompted
reduced pay.
¶19We emphasize that it is the agency’s burden to prove the charge by
preponderant evidence. See 5 U.S.C. § 7701(c)(1)(B). This includes its
obligation to rebut, by preponderant evidence, testimony by an employee or other
record evidence contesting the charge by putting forth contrary evidence. See
Rudnick v. General Services Administration , 11 M.S.P.R. 247, 250 (1982)
(reasoning that the agency’s burden to prove a removal action by preponderant
evidence never shifts and that it must rebut testimony or evidence put forth by an
employee either by impeachment or contrary evidence). Here, the appellant has
consistently argued that he ultimately was not placed in an AWOL status, and, as
discussed above, he submitted the evidence supporting that assertion. RFR File,
Tab 5 at 22-23, Tab 6 at 211. Despite having the opportunity—on several
occasions—the agency has not explained why the appellant was charged sick
leave during the relevant pay period or why his pay was not affected for the pay
period it asserts he was AWOL. At the very least, the agency has not resolved the
inconsistent evidence of record. In such a circumstance, we find that the agency
has failed to prove that it is more likely than not that it denied the appellant’s sick
leave request, rendering him AWOL. See Metropolitan Stevedore Co. v. Rambo ,
521 U.S. 121, 137 n.9 (explaining that, when the evidence is evenly balanced, the
party with the burden of persuasion must lose); Knudsen v. Department of Health
3 The appellant’s pay for the pay period following the one in question appears to have
increased, but that increase seems to be the result of a within grade increase that
became effective at the beginning of the pay period following the one in question.
RFR File, Tab 6 at 148 (testimony of the appellant), Tab 12 at 21-24.11
& Human Services , 35 F.3d 542, 550 (Fed. Cir. 1994) (concluding that, when the
evidence is in “equipoise,” the party with the burden of persuasion has failed to
meet its burden); Jaramillo v. Department of the Army , 81 M.S.P.R. 469, ¶ 7
(1999); Vasquez v. Department of the Navy , 27 M.S.P.R. 312, 315 (1985).
Accordingly, we find that the agency failed to prove its charge by preponderant
evidence.
Although the arbitrator failed to make any finding regarding whether the
appellant is a qualified individual with a disability and regarding the appellant’s
failure to accommodate disability discrimination claim, and although he was
unable to apply the Board’s most recent precedent to the appellant’s disparate
treatment disability discrimination claim, we ultimately agree with the arbitrator
that the appellant failed to establish his disability discrimination affirmative
defense.
¶20Before the arbitrator, the appellant claimed that he suffered from
alcoholism, that the Equal Employment Opportunity Committee (EEOC) has
recognized alcoholism as a disability, and that the agency engaged in disparate
treatment disability discrimination and failed to accommodate his disability.
RFR File, Tab 6 at 246-51. Specifically, he asserted that the agency treated him
less favorably than nondisabled employees with a history of more significant
attendance issues and that the agency could have accommodated him by offering
him the opportunity to get treatment before removing him. Id. at 247-51.
¶21The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act of 1973. Pridgen v. Office of Management
& Budget, 2022 MSPB 31, ¶ 35. The standards under the Americans with
Disabilities Act of 1990 (ADA), as amended by the Americans with Disabilities
Act Amendments Act of 2008 (ADAAA), have been incorporated by reference
into the Rehabilitation Act, and the Board applies them to determine whether
there has been a Rehabilitation Act violation. 29 U.S.C. § 791(f); Pridgen, 2022
MSPB 31, ¶ 35. The ADAAA provides that it is illegal for an employer to
“discriminate against a qualified individual on the basis of disability.” 42 U.S.C.12
§ 12112(a); Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28. A
qualified individual with a disability is one who can “perform the essential
functions of the . . . position that such individual holds or desires” with or
without reasonable accommodation. 42 U.S.C. § 12111(8); Haas, 2022 MSPB
36, ¶ 28. Only an otherwise qualified individual with a disability is entitled to
relief under the statute for a claim of status-based discrimination or denial of
reasonable accommodation. Haas, 2022 MSPB 36, ¶ 29.
¶22The arbitrator did not make any factual findings regarding whether the
appellant was a qualified individual with a disability. Because the record appears
to be sufficiently developed on this issue, we make our own finding on this point.
See Sadiq, 119 M.S.P.R. 450, ¶ 5; Sands v. Department of Labor , 88 M.S.P.R.
281, ¶ 8 (2001) (reasoning that, when the record is fully developed and credibility
determinations are not necessary for the Board to make a factual finding and it is
otherwise unable to defer to an arbitrator’s finding, the Board will examine the
record evidence and submissions on review to resolve an issue). Neither party
disputes that the appellant is a recovering alcoholic who was seeking treatment
during the relevant time period, RFR File, Tab 6 at 45 (testimony of the
appellant’s supervisor), 111 (testimony of the deciding official), 133 (testimony
of the appellant), and alcoholism is generally considered a disability within the
meaning of the Rehabilitation Act, as amended by the ADA, see 42 U.S.C.
§ 12114(b)(2) (providing that nothing excludes an alcoholic from being
considered a qualified individual with a disability when he is either currently
participating in a supervised rehabilitation program or when he is no longer
engaging in such use); see also Humphrey v. Department of the Army ,
76 M.S.P.R. 519, 524 (1997) (stating that alcoholism has been recognized to be a
disability under the law); Walsh v. U.S. Postal Service , 74 M.S.P.R. 627, 631
(1997) (agreeing with an administrative judge that the Board has long held that
alcoholism is a disabling condition). Additionally, the appellant’s performance
was regarded as “successful” or “acceptable.” RFR File, Tab 6 at 108, 11113
(testimony of the deciding official), 128 (testimony of the appellant); Tab 12
at 14-19. We, therefore, find that he was a qualified individual with a disability.
The appellant failed to establish a claim of disparate treatment
disability discrimination under Pridgen.
¶23As previously discussed, the appellant argued below that he was treated less
favorably than other nondisabled employees with a history of more significant
attendance issues. RFR File, Tab 6 at 250. At the hearing, a union representative
testified that he was aware of other employees with attendance issues, including
one who regularly maintained a negative leave balance, but that none were
disciplined for leave abuse. Id. at 180 (testimony of union official). In the
opinion and award, the arbitrator determined that there was “insufficient evidence
to conclude that employees with similar attendance records to [the appellant]
were not disciplined” or that the appellant was removed “because of his
alcoholism.” RFR File, Tab 6 at 313. He concluded that “[d]isability
discrimination was not established.” Id. In his request for review, the appellant
reasserts his disparate treatment disability discrimination claim and argues that
the arbitrator ignored comparators and did not apply the “correct standard” in
evaluating this claim. RFR File, Tab 5 at 40-44.
¶24After the arbitrator issued the opinion and award, the Board clarified the
standards for a disability discrimination disparate treatment claim. Specifically,
we recognized that such claims are subject to the same analytical framework for
discrimination claims arising under Title VII. Pridgen, 2022 MSPB 31 ¶ 42. An
appellant raising an affirmative defense of disparate treatment under Title VII
bears the burden of proving by preponderant evidence that the prohibited
consideration was a motivating factor in the agency’s action or decision. Id.,
¶¶ 20-22. However, to obtain full relief under the statute, including status quo
ante relief, he must show that the discrimination was a but-for cause of the
contested action or decision. Id. 14
¶25We understand that the arbitrator did not have the benefit of our analysis in
Pridgen when he issued the opinion and award, but we find his disparate
treatment disability discrimination claim analysis otherwise insufficient for us to
determine whether the appellant met either standard set forth in that case.
RFR File, Tab 6 at 312-12. Because the record is sufficiently developed on this
issue, we decide it here. See Sadiq, 119 M.S.P.R. 450, ¶ 5; Sands, 88 M.S.P.R.
281, ¶ 8.
¶26The methods by which an appellant may prove a claim of discrimination
are: (1) direct evidence; (2) circumstantial evidence, which may include
(a) evidence of suspicious timing, ambiguous statements oral or written, behavior
toward or comments directed at other employees in the protected group, and other
bits and pieces form which an inference of discriminatory intent might be drawn,
also known as “convincing mosaic”; (b) comparator evidence, consisting of
evidence, whether or not rigorously statistical, that employees similarly situated
to the appellant other than in the characteristic on which an employee is forbidden
to base a difference in treatment received systematically better treatment; (c)
evidence that the agency’s stated reason for its action is unworthy of believe, a
mere pretext for discrimination; and (3) some combination of direct and indirect
evidence. Pridgen, 2022 MSPB 31, ¶ 24.
¶27To reiterate the appellant’s argument regarding disparate treatment
discrimination, the appellant asserts that his supervisors “targeted” him and that
there were several other employees who engaged in the same or similar
misconduct and were not removed. RFR File, Tab 6 at 202-03, 206-07, 214-16,
236-240. Regarding his claim that he was targeted, the appellant points to
testimony from a union steward who claimed that the appellant’s supervisors did
not talk to him or eat lunch with him and always asked him to write memoranda
for “whatever he did wrong.” Id. at 167 (testimony of the union steward), 206.
The union steward further testified that he was told to “mind what [he] said and
did around [the appellant] because he wasn’t going to be there very long.” Id.15
at 166 (testimony of the union steward). As it relates to the appellant’s
alcoholism, the union steward testified that on at least one occasion, despite
having a positive leave balance, the appellant’s supervisors initiated a
“surveillance operation” on the appellant, asking employees to observe him to see
whether he had been drinking. Id. at 168-69 (testimony of the union steward),
206, 217, 242.
¶28We do not believe the above creates a “convincing mosaic” of
discrimination. See Pridgen, 2022 MSPB 31, ¶ 24. The appellant does not
appear to have presented any specific evidence regarding when these
conversations or “surveillance operation” occurred, nor is there any corroborating
testimony or other evidence establishing that they occurred. Notably, the union
steward testified that he witnessed a conversation among three individuals
regarding the alleged surveillance operation, yet none of the three testified as
parties to the conversations.4 RFR File, Tab 6 at 168 (testimony of the union
steward). In any event, to the extent the conversations occurred as testified, the
record is otherwise replete with evidence that the agency was sympathetic to the
appellant’s struggle with alcohol. The appellant’s supervisor testified that the
agency offered him assistance with the Employee Assistance Program (EAP) and
other peer assistance. Id. at 35-36 (testimony of the appellant’s supervisor). He
also testified that he personally offered to look into a rehabilitation facility to
help the appellant with his alcoholism, but the appellant declined. Id. at 36
(testimony of the appellant’s supervisor). Additionally, the appellant’s supervisor
further testified that he gave the appellant a ride home one day after the appellant
smelled of alcohol while on duty because he lacked a support system to assist
him, and that the agency always gave him a ride when he was sent home.
Id. at 36-39 (testimony of the appellant’s supervisor). Although it is unclear
4 Although the appellant’s supervisor, who was a party to this alleged conversation,
testified during the arbitration, appellant’s counsel did not ask him any questions
on cross examination about any alleged surveillance of the appellant. RFR File, Tab 6
at 41-48. 16
whether the events related to the appellant’s alcoholism, the supervisor also
testified that he would give the appellant a ride to medical appointments and had
offered to pay the appellant’s co-pay when he was “short on cash.” Id. at 36-37
(testimony of the appellant’s supervisor). To the extent the agency acted on
concerns that the appellant was intoxicated while on duty, neither the
Rehabilitation Act nor the ADA immunizes a disabled employee from being
disciplined for misconduct in the workplace, provided the agency would impose
the same discipline on an employee without a disability. Burton v. U.S. Postal
Service, 112 M.S.P.R. 115, ¶ 16 (2009).
¶29In that regard, we turn to the appellant’s argument that the agency treated
him less favorably than other similarly situated employees due to his disability.
The appellant puts forth four individuals who, he asserts, have been disciplined
less severely for similar or more severe misconduct. RFR File, Tab 6 at 214-16.
To be similarly situated for purposes of a discrimination claim, comparators must
have reported to the same supervisor, been subjected to the same standards
governing discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Pridgen, 2022 MSPB 31, ¶ 27; Fox
v. Department of the Army , 120 M.S.P.R. 529, ¶ 37 (2014). Here, three of the
four employees identified by the appellant were charged with attendance-related
misconduct, while the fourth was charged with conduct unbecoming relating to
inappropriate sexual behavior while off-duty. RFR File, Tab 6 at 214-16, Tab 12
at 4-11, 32-56. The appellant has not established, however, that any of the
alleged comparators had the same supervisor. To the contrary, based on the
limited record evidence, all four employees appear to have been stationed at
locations different from one another and from the appellant, making any chance
of having the same supervisor unlikely. RFR File, Tab 12 at 32-56. Accordingly,
the appellant has not established that these employees were similarly situated to
him. See Pridgen, 2022 MSPB 31, ¶ 27. 17
¶30Based on the foregoing, we find that the appellant failed to prove that his
status as a disabled person was a motivating factor in the decision to remove him.
Pridgen, 2022 MSPB 31, ¶¶ 20-22.
The arbitrator failed to make any findings regarding the appellant’s
failure to accommodate disability discrimination claim, but we
nonetheless find that this claim fails.
¶31As noted above, the appellant asserted before the arbitrator that the agency
failed to accommodate his disability. RFR File, Tab 6 at 247-48. In the opinion
and award, the arbitrator briefly acknowledged that the appellant raised a failure
to accommodate claim, but he did not provide any discussion of the claim.
RFR File, Tab 6 at 312-13. The appellant has raised this affirmative defense
again in his request for review. RFR File, Tab 5 at 39-40. Because the record
appears to be sufficiently developed on this issue, we make our own findings on
this claim. See Sadiq, 119 M.S.P.R. 450, ¶ 5; Sands, 88 M.S.P.R. 281, ¶ 8.
¶32An agency is required to make reasonable accommodation to the known and
physical and mental limitations of an otherwise qualified individual with a
disability unless the agency can show that the accommodation would cause an
undue hardship on its business operations. Miller v. Department of the Army ,
121 M.S.P.R. 189, ¶ 13 (2014); 29 C.F.R. § 1630.9(a). Reasonable
accommodation includes modifications to the manner in which a position is
customarily performed in order to enable a qualified individual with a disability
to perform the essential job functions. Miller, 121 M.S.P.R. 189, ¶ 13. In
addition to showing that the appellant is a qualified individual with a disability,
as discussed above, he must also show that the agency failed to provide a
reasonable accommodation. Id.
¶33Despite the appellant’s claim that the agency could have offered him the
opportunity to get treatment before removing him, the Board has held that Federal
agencies are not required to provide alcoholic employees with a firm choice
between rehabilitation and discipline. See Kimble v. Department of the Navy ,18
70 M.S.P.R. 617, 622-23 (1996). Moreover, the appellant testified that he was
absent on July 6, 2018, because he was experiencing symptoms which would later
result in a diagnosis of an ear infection—not because he was drinking the night
before. RFR File, Tab 6 at 139-41 (testimony of the appellant). Thus, his
removal was not the result of his disability or the agency’s purported failure to
accommodate that disability. Accordingly, we find that his reasonable
accommodation claim fails.
The arbitrator correctly found that the appellant failed to prove his affirmative
defense alleging a due process violation.
¶34The appellant argued below that the agency violated his due process rights
when the deciding official improperly considered allegations of misconduct from
a June 20, 2018 incident, which allegedly involved the appellant’s use of alcohol,
and the agency failed to inform him in the proposal notice that it would be relying
on this incident in deciding to remove him. RFR File, Tab 6 at 218-22. He cites
the deciding official’s testimony from the arbitration hearing where he admits that
he considered the June 20, 2018 incident and asserts that it was undisputed that
the event was not discussed in the notice of proposed removal. Id. at 102-03
(testimony of the deciding official), 221-22.
¶35In the opinion and award, the arbitrator reasoned that the deciding official’s
consideration of the June 20, 2018 incident “appears to be a response to the
[appellant’s] claim of an alcohol issue [in his reply to the proposed removal],
rather than as an independent basis for discipline outside of the listed charges.”
Id. at 305. He concluded that the appellant failed to establish a due process
violation. Id. at 305. In his request for review, the appellant claims that “[i]t is
impossible for the [a]rbitrator’s analysis to be correct” because the appellant did
not raise the affirmative defense of disability discrimination until after the agency
proposed his removal and “included inflammatory documents about an
alcohol-related incident that were totally unrelated to the substance of the charges
against him.” RFR File, Tab 5 at 36. 19
¶36The essential requirements of constitutional due process for a tenured public
employee are notice of the charges against him, an explanation of the evidence,
and an opportunity for him to present his account of events. Cleveland Board of
Education v. Loudermill , 470 U.S. 532, 546 (1985). The U.S. Court of Appeals
for the Federal Circuit has held that a deciding official violates an employee’s
due process rights when he relies upon new and material ex parte information as a
basis for his decision on the merits of a proposed charge or the penalty to be
imposed. Ward v. U.S. Postal Service , 634 F.3d 1274, 1279-80 (Fed. Cir. 2011);
Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1376-77 (Fed.
Cir. 1999). To determine if ex parte information is new and material, the Board
will consider (1) whether it introduced cumulative, as opposed to new,
information; (2) whether the employee knew of the information and had an
opportunity to respond; and (3) whether the communication was of the type likely
to result in undue pressure on the deciding official to rule in a particular manner.
Stone, 179 F.3d at 1377.
¶37We agree with the arbitrator that the appellant failed to establish a due
process violation. By the appellant’s own admission, the agency included
“inflammatory documents about an alcohol-related incident” with its notice of
proposed removal. RFR File, Tab 5 at 36. He specifically acknowledges that the
agency included with its proposal notice six documents from a separate
investigation about the June 20, 2018 incident, and that it did so to “show the
deciding official information about another potential example of misconduct,
which it chose not to include among the charges.” Id. at 36-37. Although it is
undisputed that the agency did not charge the appellant with any misconduct
related to the June 20, 2018 incident in the proposal notice, the appellant’s
admission that he knew of the information and had an opportunity to respond to it
prior to his removal establishes that there was no new and material ex parte
information that was considered in violation of the appellant’s due process rights.
See Stone, 179 F.3d at 1377. 20
¶38Moreover, contrary to the appellant’s assertions, the deciding official
testified that he considered information surrounding the June 20, 2018 incident as
confirmation of the appellant’s struggle with alcoholism—not as uncharged
misconduct—and that he “focused very much on the charges that were in the
proposal letter.” RFR File, Tab 6 at 115 (testimony of the deciding official). To
the extent the appellant argues that the deciding official violated his due process
rights in considering the incident at all, we agree with the arbitrator that it is the
appellant who first raised the incident with any particular substance.5 RFR File,
Tab 6 at 305. The Board has held that a deciding official does not violate an
employee’s right to due process when he considers issues raised by an employee
in his response to the proposed adverse action. See Grimes v. Department of
Justice, 122 M.S.P.R. 36, ¶ 13 (2014) (finding that, when the appellant raised
issues in her written and oral replies, the deciding official’s consideration of
those issues did not violate her right to due process). Accordingly, the
appellant’s due process affirmative defense is without merit.6
We need not address the arbitrator’s findings regarding whether the penalty
promotes the efficiency of the service and was reasonable.
¶39Because we have found above that the agency failed to prove its charge, we
need not address the appellant’s arguments concerning whether the arbitrator’s
findings regarding the penalty of removal were in accordance with civil service
law. RFR File, Tab 5 at 44-46.
5 Although the agency included as background with its proposal notice information
concerning the June 20, 2018 incident, it is undisputed that the incident was not
discussed in the proposal notice itself as a potential charge or as a part of the proposing
official’s preliminary penalty determination. RFR File, Tab 8 at 4-7. The appellant has
not cited anything limiting what an agency may include as background information with
its proposal notice to support its action. The first time the June 20, 2018 incident was
mentioned as a particularly relevant issue was in the appellant’s response to the
proposal notice. RFR File, Tab 8 at 19-20.
6 The appellant has not argued in his request for review that the circumstances
surrounding any consideration of the June 20, 2018 incident constituted harmful error,
nor has he identified any agency policy or regulation with which the agency has failed
to comply. RFR File, Tab 5 at 33-37. 21
ORDER
¶40We ORDER the agency to cancel the removal and reinstate the appellant to
his position of cartographer, GS-12, effective December 12, 2018. See Kerr
v. National Endowment for the Arts , 726 F.2d 730 (Fed. Cir. 1984). The agency
must complete this action no later than 20 days after the date of this decision.
¶41We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶42We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶43No 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 Clerk of the Board if the appellant believes that the agency did not fully
carry out the Board’s Order. The petition should contain specific reasons why the
appellant believes that the agency has not fully carried out the Board’s Order, and
should include the dates and results of any communications with the agency.
5 C.F.R. § 1201.182(a).
¶44For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision22
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
¶45This is the final decision of the Merit Systems Protection Board in this
request for review. Title 5 of the Code of Federal Regulations, section
1201.113(c) (5 C.F.R. § 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees motion with the Clerk of the Board.
NOTICE OF APPEAL RIGHTS7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.23
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. 24
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 25
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 26
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.27 | Haller_Derik_F_CB-7121-20-0002-V-1_Final_Order.pdf | 2024-09-04 | DERIK F. HALLER v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. CB-7121-20-0002-V-1, September 4, 2024 | CB-7121-20-0002-V-1 | NP |
575 | https://www.mspb.gov/decisions/nonprecedential/Ruiz_Daniel_J_DA-1221-22-0270-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL J. RUIZ,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-1221-22-0270-W-1
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel J. Ruiz , Bryan, Texas, pro se.
Sung H. Lee , Grand Prairie, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied corrective action in his individual right of action (IRA) appeal. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2On petition for review, the appellant challenges the administrative judge’s
credibility findings and argues that he has new and material evidence that
warrants a different outcome. Petition for Review (PFR) File, Tabs 1, 3. He also
challenges the sufficiency of the agency’s discovery responses. PFR File, Tab 1
at 4-6. The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing, and 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). In his petition for
review, the appellant challenges the administrative judge’s credibility
determinations, many of which were demeanor -based. PFR File, Tab 1 at 4-11.
For example, the appellant challenges the warden’s testimony that she did not
reduce the appellant’s overtime. Id. at 7. However, the administrative judge
found the warden’s denial concerning the reduction of overtime to be
unpersuasive and she found that the appellant proved that the agency reduced his
overtime. Initial Appeal File (IAF), Tab 35, Initial Decision (ID) at 22-23. The
appellant also appears to challenge the truthfulness of his first-line supervisor,
S.R., on review. PFR File, Tab 3 at 4-5. He asserts that the warden made S.R.2
cry concerning criticisms of the conditions in the Food Services department. Id.
The appellant asserts that S.R. denied this at her deposition. Id. However, S.R.
testified at the hearing about a counseling from the warden, and the administrative
judge found that S.R.’s testimony on this topic was unhesitating, forthright, and
expressive of vulnerability. ID at 31. We find that the appellant’s specific
challenges to the credibility of agency witnesses are insufficient to warrant a
different outcome. The administrative judge explained in her well-reasoned
initial decision why she accepted some testimony of agency witnesses and
rejected other testimony, including a thorough analysis of the demeanor of
witnesses. ID at 16-35. We find that the appellant has not provided a sufficiently
sound reason for disturbing the administrative judge’s credibility findings. See
Haebe, 288 F.3d at 1301.
¶3As to the appellant’s assertion that he has new and material evidence that
warrants a different outcome, we are not persuaded. PFR File, Tab 1 at 6-66.
Some of the documents filed by the appellant on review are already in the record
and are not new. See Meier v. Department of the Interior , 3 M.S.P.R. 247, 256
(1980). As to the remaining documents, it appears that all but one predate the
initial decision, and we therefore find that they are not new. See Avansino v. U.S.
Postal Service, 3 M.S.P.R. 211, 213-14 (1980) (explaining that, under 5 C.F.R.
§ 1201.115, the Board generally will not consider evidence submitted for the first
time with a petition for review absent a showing that it was unavailable before the
record was closed before the administrative judge despite the party’s due
diligence). The appellant has provided one document that postdates the initial
decision.2 PFR File, Tab 3 at 9. However, the appellant has not established that
the evidence was unavailable before the close of the record before the
administrative judge despite his due diligence. See Grassell v. Department of
2 The appellant has also filed one document that is undated and we are therefore unable
to determine whether the document was available prior to the close of the record before
the administrative judge. PFR File, Tab 1 at 22. Even if the document is new, we have
considered it and we find that it does not warrant a different outcome.3
Transportation, 40 M.S.P.R. 554, 564 (1989) (holding that, to constitute new and
material evidence, the information contained in the documents, not just the
documents themselves, must have been unavailable despite the appellant’s due
diligence when the record closed). We have considered the appellant’s argument
that he provided certain documents to his former representative, who did not file
them before the administrative judge.3 PFR File, Tab 3 at 4. However, the
appellant is bound by the action or inaction of his chosen representative.4 See
Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981).
¶4Finally, the appellant alleges on review that the agency withheld evidence
in discovery. PFR File, Tab 1 at 4-6. Specifically, the appellant objects to the
agency’s responses to his twelfth request for the production of documents. Id.
Before the administrative judge, the appellant challenged the sufficiency of the
agency’s discovery responses by filing a motion to compel. IAF, Tab 17. The
administrative judge denied the appellant’s motion to compel regarding the
twelfth document request. IAF, Tab 21 at 3-4. We find no basis to disturb the
administrative judge’s ruling.5 See Wagner v. Environmental Protection Agency ,
54 M.S.P.R. 447, 452 (1992) (holding that the Board will not reverse an
administrative judge’s discovery rulings absent an abuse of discretion), aff’d,
996 F.2d 1236 (Fed. Cir. 1993) (Table).
3 Contrary to the appellant’s assertion, many of the documents the appellant submits on
review are already in the record.
4 More than 1 year after the record on review closed, the appellant filed a brief motion
seeking to submit additional evidence or argument. PFR File, Tab 8. The appellant has
not described the nature or need for the evidence that he wishes to submit, nor has he
stated that the evidence was not readily available before the record closed.
Accordingly, the appellant’s motion does not meet the Board’s criteria for filing an
additional pleading, and we deny his motion. 5 C.F.R. § 1201.114(a)(5), (k).
5 On review, the appellant also references the agency’s response to his second request
for admission. PFR File, Tab 1 at 6. He does not appear to argue that the agency
withheld information relevant to this request; rather, he suggests that the agency’s
response, denying that overtime was reduced during 2021, was false. Id. The
appellant’s arguments on review do not warrant a different outcome because, in the
initial decision, the administrative judge found that the appellant proved that his
overtime was reduced in 2021. ID at 22-23.4
¶5Based on the foregoing, we deny the appellant’s petition for review and
affirm the initial decision denying corrective action in this IRA appeal.
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.7 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Ruiz_Daniel_J_DA-1221-22-0270-W-1_Final_Order.pdf | 2024-09-04 | DANIEL J. RUIZ v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-1221-22-0270-W-1, September 4, 2024 | DA-1221-22-0270-W-1 | NP |
576 | https://www.mspb.gov/decisions/nonprecedential/Russell_StephanieAT-1221-22-0436-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHANIE RUSSELL,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-1221-22-0436-W-1
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun C. Southworth , Esquire, and Lydia Taylor , Esquire, Atlanta,
Georgia, for the appellant.
Holly L. Buchanan , Esquire, and William V. Cochrane, Jr. , Esquire, Eglin
Air Force Base, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action appeal.
On petition for review, the appellant claims that the administrative judge
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
overlooked the fact that she engaged in protected activity by filing a complaint
with the Office of Special Counsel and she disputes the administrative judge’s
conclusion that she did not make protected whistleblowing disclosures, primarily
disagreeing with the administrative judge’s credibility determinations. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: _____________________ _________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Russell_StephanieAT-1221-22-0436-W-1_Final_Order.pdf | 2024-09-04 | STEPHANIE RUSSELL v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-1221-22-0436-W-1, September 4, 2024 | AT-1221-22-0436-W-1 | NP |
577 | https://www.mspb.gov/decisions/nonprecedential/Killebrew_Cedric_A_AT-0752-19-0414-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CEDRIC A. KILLEBREW,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
AT-0752-19-0414-I-2
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James M. Allen , Esquire, Memphis, Tennessee, for the appellant.
Anna N. Winkle , Esquire, Elizabeth A. Sorrells , Kyle Fields , and Linda
Martin , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
Prior to his removal, the appellant was employed as a Railroad Safety
Inspector, GS-2121-12, with the Federal Railroad Administration. Killebrew v.
Department of Transportation , MSPB Docket No. AT -0752-19-0414-I-1, Initial
Appeal File (IAF), Tab 8 at 226. On March 15, 2019, the agency removed the
appellant for (1) engaging in outside employment activity that conflicts with
official duties (five specifications, citing 5 C.F.R. § 2635.802 and 18 U.S.C.
§ 203(a)); (2) conduct unbecoming a Federal employee (one specification, based
on an unrelated incident); (3) misuse of government property (three
specifications); and (4) failure to report outside position on financial disclosure
report (one specification, citing 5 C.F.R. §§ 2634.307 and 2634.907). Id. at 226.
The appellant filed a timely appeal on March 25, 2019. IAF, Tab 1.
The initial appeal was dismissed without prejudice and later refiled automatically.
IAF, Tab 14; Killebrew v. Department of Transportation , MSPB Docket No.
AT-0752-19-0414-I-2, Appeal File (I-2 AF), Tab 1. On November 19, 2019,
following a hearing, the administrative judge issued an initial decision sustaining
the removal. I-2-AF, Tab 22, Initial Decision (ID). The administrative judge2
found that the agency failed to prove charge (2), but proved charges (1), (3), and
(4) by a preponderance of the evidence. ID at 2 -20. He further found that that
the appellant failed to establish his affirmative defenses of race discrimination,
retaliation for equal employment opportunity (EEO) activity, and denial of due
process. ID at 20-23. Finally, he conducted an independent analysis of the
Douglas factors2 and concluded that the removal penalty was reasonable based on
the sustained misconduct. ID at 24-27.
The appellant timely filed the instant petition for review. Petition for
Review (PFR) File, Tab 1. The agency has filed a response to the appellant’s
petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge made errors
of material fact, specifically, in finding that the appellant did not file an Office of
Government Ethics (OGE) Form 450 (Confidential Financial Disclosure Report)
during the years 2014 through 2016, and also in finding that the appellant
engaged in outside business during the years 2013 through 2015. Id. at 6-7.
The appellant explains that these alleged errors go to the merits of charges (1)
and (4) and the reasonableness of the penalty. Id. at 7-8. The appellant further
argues that the administrative judge misinterpreted 18 U.S.C. § 203(a), and that
the agency failed to demonstrate a violation of the statute, as alleged in charge
(1). PFR File, Tab 1 at 8-13.3 The appellant also argues that the administrative
judge erred in disallowing testimony by a proposed witness and documentary
evidence of the proposed witness’s statement to the Federal Bureau of
Investigation (FBI). Id. at 13-14. The appellant further argues that the agency
violated his due process rights when the deciding official relied in part on an
2 In Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981 ), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
3 Pages 9 and 10 are duplicates. 3
allegation not mentioned in the proposal notice, specifically, that the appellant
had exercised bad judgment by looking the other way when his partner provided
him with information “that a reasonable person would have recognized was
non-public.” Id. at 14-15; IAF, Tab 8 at 119. Finally, the appellant argues that
the deciding official failed to consider or fully consider relevant Douglas factors.
PFR File, Tab 1 at 16-17. The appellant does not challenge the administrative
judge’s findings concerning charge (3) or his affirmative defenses of race
discrimination and retaliation for EEO activity.
The administrative judge did not err in sustaining charge (1).
Under charge (1), the agency alleged that on five occasions the appellant
solicited business on behalf of his own private company, Genesis Professional
Solutions (GPS), offering fee-based Federal Motor Carrier Safety Administration
(FMCSA) compliance services to several companies, including a company used
for the FBI undercover operation. IAF, Tab 6 at 46-49. In two cases, the agency
alleged that the appellant accepted payment on behalf of GPS. Id. In the
background section of the charge, the agency explained that it considered the
appellant to have violated 5 C.F.R. § 2635.802, which prohibits employees from
engaging in outside employment activity that conflicts with their official duties,
because the appellant engaged in activity prohibited by criminal statute 18 U.S.C.
§ 203(a). Id. at 36; see 5 C.F.R. § 2635.802(a) (providing that an activity
conflicts with an employee’s official duties if it is prohibited by statute).
When an agency charges an employee with violation of a specific criminal
statute, the agency must prove the elements of that crime. See Heath v.
Department of Transportation , 64 M.S.P.R. 638, 645-46 (1994). As relevant
here, 18 U.S.C. § 203(a) prohibits a Federal employee from demanding, seeking,
receiving, accepting, or agreeing to receive or accept compensation for any
“representational services” before a Federal agency, in this case, FMCSA.
The essential details of the events are not in dispute. The record reflects,
and the appellant does not dispute, that he offered fee-based FMCSA compliance4
services to numerous companies as alleged in specifications (1) through (4).
IAF, Tab 6 at 80, 82, 84, 86, 91-98, 100, 102-103, 106. The record also reflects
that the appellant admits to receiving payment from at least one company and that
he offered services to an FBI undercover agent regarding FMCSA compliance
matters, entered into a contract for those services, and received multiple payments
for those services, though they were never in fact provided. IAF, Tab 6 at 67,
69-73, 75-76, Tab 7 at 72. The appellant argues, however, that his actions did not
violate 18 U.S.C. § 203(a). PFR File, Tab 1 at 8-13.
The appellant concedes that 18 U.S.C. § 203(a) should be construed
broadly, and that the administrative judge was correct in finding that the term
“representational services” encompasses more than serving as an agent or an
attorney. Id. at 8-9; ID at 7. However, he argues that the statute nonetheless
requires “some interaction” with a Federal agency, which did not occur in this
case. PFR File, Tab 1 at 9. In support of his argument, the appellant cites United
States v. Reisley , 35 F. Supp. 102 (D.N.J. 1940), in which the district court
considered the defendant’s motion for a new trial following his conviction for a
violation of 18 U.S.C. § 203 (1934), a conflict of interest statute that preceded the
statute at issue in this case.4 The defendant, an employee of the Veterans
Administration, had received money for promising to effect an increase in
benefits for the payor, but the increase had in fact already occurred without any
action by the defendant. Reisley, 35 F. Supp. at 103-04. The court found that, in
the absence of evidence of “actual services rendered to [the payor] by the
defendant,” the conviction could not stand. Id. at 104.
4 The statute at issue in Reisley prohibited any Federal employee from “directly or
indirectly, receiv[ing] or agree[ing] to receive, any compensation whatever for any
services rendered or to be rendered to any person, either by himself or another, in
relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or
other matter or thing in which the United States is a party or directly or indirectly
interested, before any department, court-martial, bureau, officer, or any civil, military,
or naval commission[.]” 18 U.S.C. § 203 (1934); Reisley, 35 F. Supp. at 103.
Unlike the current § 203(a), the predecessor statute did not explicitly forbid seeking
such compensation.5
The appellant further argues that, contrary to the administrative judge’s
interpretation, 18 U.S.C. § 203(a) requires “some measure” of intent, which he
asserts the agency failed to demonstrate. PFR File, Tab 1 at 12-13. In support of
that argument, the appellant cites United States v. Project on Government
Oversight, 616 F.3d 544 (D.C. Cir. 2010), in which the circuit court found that a
related statute, 18 U.S.C. § 209, which prohibits making or receiving
contributions “as compensation” for the performance of services as a Federal
employee, requires an element of intent on the part of the payor. Id. at 550.
These arguments are unsuccessful. First, with exceptions not applicable
here, decisions by district courts or circuit courts other than the U.S. Court of
Appeals for the Federal Circuit are not binding on the Board, and are
authoritative only to the extent the Board finds them persuasive. Mynard v.
Office of Personnel Management , 108 M.S.P.R. 58, ¶ 14 (2008). Moreover, we
are not persuaded that Reisley should control, given the existence of case law
holding that a violation of 18 U.S.C. § 203(a), the statute at issue here, does not
require the performance of services or the appearance before a forum enumerated
in the statute. See U.S. v. Freeman , 813 F.2d 303, 306 (10th Cir. 1987) (citing
U.S. v. Evans, 572 F.2d 455, 481 (5th Cir. 1978)). Also, unlike the statute at
issue in Reisley, § 203(a) provides that it is a crime for a Federal employee to
“seek[]” compensation for representational services before an agency, which on
its face does not entail that the employee actually receive such payment or
perform the services in question. 18 U.S.C. § 203(a). Lastly, Reisley is
distinguishable because, in that case, the Government specifically alleged that the
defendant received compensation for “services rendered by him to [the payor].”
35 F. Supp. at 103 (emphasis added); see also id. at 104 (explaining that the
gravamen of the charge was that the appellant “received compensation for
services rendered to [the payor] before the Veterans Administration”)
(emphasis added). The agency did not make such an allegation in this case. 6
Likewise, we are not persuaded that Project on Government Oversight
should control, given the existence of case law finding that § 203(a), the statute at
issue here, does not include an element of specific intent. See Evans, 572 F.2d
at 481. Additionally, the court in Project on Government Oversight did not find
that a violation of § 209 requires any particular intent on the part of the payee.
Admittedly, Evans involved the statute’s prohibition against receiving
compensation, whereas the alleged violation in this case also involves the
statute’s prohibition against seeking such compensation, which implies the intent
to obtain it. However, it is undisputed and amply clear from the record that the
appellant did intentionally seek payment for assistance in compliance matters
before FMCSA. Accordingly, we discern no error in the administrative judge’s
finding that the agency proved charge (1).
The administrative judge did not err in sustaining charge (4).
Under charge (4), the agency alleged that the appellant failed to report his
position with GPS on the Form 450s for 2013, 2014, and 2015, in violation of
5 C.F.R. §§ 2634.307 and 2634.907.5 IAF, Tab 6 at 51-52. The appellant
contends that the administrative judge erred in finding that he did not file a Form
450 during the years 2014 through 2016, and in finding that he engaged in outside
business during the years 2013 through 2015. PFR File, Tab 1 at 6-7.
However, contrary to the appellant’s assertions, the administrative judge did not
find that the appellant failed to file a Form 450 during the years 2014 through
2016. Rather, the administrative judge found, and the written record reflects, that
the appellant did file a Form 450 or the equivalent in early 2014 (covering 2013),
5 Title 5 C.F.R. § 2634.307 provides, with exceptions not applicable here, that a
financial disclosure form (such as Form 450) “must identify all positions held at any
time by the filer during the reporting period, as an officer, director, trustee, general
partner, proprietor, representative, executor, employee, or consultant of any
corporation, company, firm, partnership, trust, or other business enterprise, any
nonprofit organization, any labor organization, or any educational or other institution
other than the United States.” Section 2634.907(e) contains substantially identical
language. 7
2015 (covering 2014), and 2016 (covering 2015), but did not report his position
with GPS.6 ID at 19-20; IAF, Tab 7 at 4, 6-8. The administrative judge further
found that the appellant should have reported the position because he conducted
business as the proprietor of GPS during 2013, 2014, and 2015, by soliciting
company representatives, by issuing service orders or contracts, or by receiving
payments. ID at 20; see IAF, Tab 6 at 79-85 (for 2013), 60 (for 2014), 69-70
(for 2015).
The appellant explains that, when he completed the Form 450 in early
2014, he did not list GPS as a position “primarily because he did not consider
GPS to be a going concern.” PFR File, Tab 1 at 7. He states that this position is
supported by the fact that the four proposals he sent in 2013 did not succeed in
generating any business. Id. What matters here, however, is that in his attempts
to solicit such business, the appellant held himself out as the proprietor of GPS,
which is a reportable position under the pertinent regulations. See 5 C.F.R.
§§ 2634.307, 2634.907 (listing “proprietor” as a position that must be reported on
a financial disclosure form). The record further shows that the appellant again
acted as the proprietor of GPS in 2014 and 2015, during his contacts with
undercover FBI agents. IAF, Tab 6 at 67, 69-70, Tab 7 at 72. Thus, the
administrative judge correctly found that, as alleged in charge (4), the appellant
was required by regulation to list his position with GPS on his financial
disclosure forms covering 2013, 2014, and 2015, and failed to do so.
6 In the Form 450s completed in February 2015 (covering 2014) and February 2016
(covering 2015), the appellant checked “No” next to statement III, “I have reportable
outside positions for myself.” IAF, Tab 7 at 7-8. It appears that in February 2014, the
appellant completed an OGE Form 450-A (covering 2013), in lieu of a Form 450,
certifying that he had no new reportable positions since he filed his last Form 450. IAF,
Tab 7 at 6. In his previous Form 450, completed in January 2013, the appellant had
indicated that he did not have any reportable outside positions. Id. at 4. Thus, if the
appellant was required to list an outside position for 2013, he failed to do so. 8
The administrative judge did not abuse his discretion in denying testimony by a
proposed witness and the witness’s statement to the FBI.
The appellant argues that the administrative judge erred in disallowing
testimony by a proposed witness and documentary evidence of the proposed
witness’s statement to the FBI. PFR, Tab 1 at 13-14. The appellant asserts that
the proposed witness had direct knowledge of the appellant’s work history and
disciplinary record, as well as direct knowledge of a similarly situated individual
who ran an outside business washing railroad cars but did not face discipline.
Id. at 13-14. The appellant asserts that the testimony and evidence would also
demonstrate that he continued to perform his usual duties during the period
between January 2015, when the proposing official became aware of the
allegations against him, and July 27, 2018, when he was placed on leave pending
resolution of the notice of proposed removal.7 Id. at 14.
The Board will not reverse an administrative judge’s rulings on discovery
matters absent an abuse of discretion . Wagner v. Environmental Protection
Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993)
(Table). Moreover, an administrative judge has wide discretion under 5 C.F.R.
§ 1201.41(b)(8), (10) to exclude witnesses where it has not been shown that their
testimony would be relevant, material, and nonrepetitious. Franco v. U.S. Postal
Service, 27 M.S.P.R. 322, 325 (1985). Here, there was no apparent need for the
proposed testimony and evidence, as the agency has never disputed that the
appellant had a history of excellent performance and a clean disciplinary record,
or that he continued to perform his usual duties during the period between
January 2015 and July 2018. Moreover, the fact that another employee ran an
outside business washing railroad cars would not establish that the employee was
similarly situated to the appellant, who was also charged with misuse of
government property and failure to report an outside position on his financial
7 The appellant states that he was “suspended,” PFR File, Tab 1 at 14, but the record
reflects that he was placed on paid administrative leave pending resolution of the
proposed removal, IAF, Tab 6 at 57. 9
disclosure reports. See Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 17
(reaffirming holding of Douglas, 5 M.S.P.R. at 305, that similarly situated
employees must have engaged in the same or similar offenses). Thus, the
appellant has not demonstrated that the administrative judge abused his discretion
in denying the testimony and documents in question.
The appellant’s due process claim provides no basis for further review.
The appellant argues that the agency violated his due process rights when
the deciding official relied in part on an allegation not mentioned in the proposal
notice, specifically, that the appellant had exercised bad judgment by looking the
other way when his partner at DOT provided him with information “that a
reasonable person would have recognized was non-public.” PFR File, Tab 1
at 14-15; IAF, Tab 8 at 119. The appellant asserts that he did not have an
opportunity to respond to that allegation. PFR File, Tab 1 at 15.
This is new argument. In his response to the notice of proposed removal,
the appellant implicitly alleged that the agency violated his due process rights
because he was not given adequate time to rebut the allegations against him, was
not provided the opportunity to interview all witnesses, and did not receive all of
the information he requested. IAF, Tab 7 at 75, 77, Tab 8 at 113. In his
pleadings before the Board, the appellant again alleged that the agency denied
him due process, but he did not elaborate on that claim. IAF, Tab 1 at 6; I-2 AF,
Tab 4 at 5-6. As the administrative judge noted, the appellant did not allege that
the deciding official relied on new and material ex parte information as a basis
for his decision on the merits of the charges or the penalty to be imposed. ID
at 23. Thus, the appellant’s new claim that the deciding official’s penalty
analysis relied on ex parte information provides no basis for further review.8
Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980) (holding that
8 In any event, the proposal notice did in fact indicate that the appellant’s failure to
question where his partner obtained non-public information was being considered as an
aggravating factor. IAF, Tab 6 at 52-53, 55-56. Moreover, the appellant specifically
addressed that allegation in his response to the notice. IAF, Tab 7 at 79. 10
the Board will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party's due diligence).
The appellant’s objections to the deciding official’s penalty analysis do not
provide a basis for further review.
Finally, the appellant argues that the deciding official failed to consider or
fully consider relevant Douglas factors, including the infrequency of the alleged
misconduct, the availability of lesser sanctions, the appellant’s 14 years of
service, his past performance and work history, and the discipline issued to
employees charged with similar or worse misconduct. PFR File, Tab 1 at 16-17.
If the appellant means to argue that these alleged errors warrant further review,
his argument rests on a misreading of the initial decision. Because the
administrative judge did not sustain all of the charges, he did not defer to the
deciding official’s penalty determination, but instead conducted an independent
analysis of the Douglas factors. ID at 24-27; see Hill v. Department of the Army ,
120 M.S.P.R. 340, ¶ 4 n.4 (2013) (conducting an independent penalty analysis
when only one of two charges was sustained). Thus, the appellant’s objections to
the deciding official’s penalty analysis are moot, and provide no basis for further
review. The appellant has not argued that the administrative judge erred in his
own penalty analysis, and we discern no error in the administrative judge’s
reasoning or in his conclusion that the penalty of removal was reasonable for the
sustained misconduct.9
9 In his penalty analysis, the administrative judge cited Boucher v. U.S. Postal Service ,
118 M.S.P.R. 640, ¶ 24 (2012 ), which in turn cites Lewis v. Department of Veterans
Affairs, 113 M.S.P.R. 657, ¶ 15 (2010 ), for the proposition that consistency of the
penalty requires enough similarity between both the nature of the misconduct and other
factors to lead a reasonable person to conclude that the agency treated similarly situated
employees differently. ID at 25. During the pendency of this petition for review, the
Board issued its decision in Singh, which overruled Lewis to the extent it is contrary to
Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988 ), in which the
U.S. Court of Appeals for the Federal Circuit held that the proper inquiry is whether the
agency knowingly treated employees “in a way not justified by the facts, and
intentionally for reasons other than the efficiency of the service,” Singh, 2022 MSPB11
NOTICE OF APPEAL RIGHTS10
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
15, ¶14. As noted above, Singh also reaffirmed the standard set forth in Douglas,
5 M.S.P.R. at 305, which requires that similarly situated employees must have engaged
in the same or similar offenses, and overruled case law to the contrary. Singh,
2022 MSPB 15, ¶ 17. Because the record contains no evidence of other employees who
engaged in the same or similar conduct, including the conduct described in charges (3)
and (4), the issuance of Singh does not affect the administrative judge’s assessment of
this factor.
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.12
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on13
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or14
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 15
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. 16 | Killebrew_Cedric_A_AT-0752-19-0414-I-2_Final_Order.pdf | 2024-09-04 | CEDRIC A. KILLEBREW v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0752-19-0414-I-2, September 4, 2024 | AT-0752-19-0414-I-2 | NP |
578 | https://www.mspb.gov/decisions/nonprecedential/Bruner_Hiawatha_C_DA-0752-11-0467-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HIAWATHA C. BRUNER,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-0752-11-0467-I-1
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Hiawatha Curtis Bruner , Oklahoma City, Oklahoma, pro se.
Joan M. Green , Oklahoma City, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal as withdrawn. For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown, 5 C.F.R. § 1201.114(e), (g), and his request to reopen his appeal is
DENIED, 5 C.F.R. § 1201.118.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
¶2The appellant was removed from his position as a Program Specialist,
effective April 20, 2011, for alleged misconduct and timely appealed his removal
to the Board on May 12, 2011. Initial Appeal File (IAF), Tabs 1, 8 at 2-3. On
August 9, 2011, the appellant’s attorney withdrew the appeal during a
teleconference, and the administrative judge issued an initial decision dismissing
the appeal as withdrawn. IAF, Tab 13, Initial Decision (ID) at 1-2. The initial
decision informed the appellant that it would become final on September 13,
2011, unless a petition for review was filed by that date. ID at 2.
¶3On October 16, 2023, the appellant filed a petition for review, in which he
argues that the administrative judge dismissed the appeal based solely on
counsel’s assertion during the teleconference and without the appellant’s
approval, and he asks the Board to reconsider the initial decision due to
inadequate legal representation during the proceedings below. Petition for
Review (PFR) File, Tab 4 at 1-3. The Office of the Clerk of the Board notified
the appellant that his petition for review was untimely filed and provided him
with the opportunity to file a motion to accept the filing as timely or to waive the
time limit for good cause with an affidavit or sworn statement. PFR File, Tab 5
at 1-2. The appellant did not respond to the acknowledgement letter, and the
agency did not respond to the appellant’s petition.
ANALYSIS
The appellant’s petition for review is untimely filed without good cause shown.
¶4A petition for review generally must be filed within 35 days after the date of
the issuance of the initial decision or, if the party filing the petition shows that he
received the initial decision more than 5 days after it was issued, within 30 days
after he received the initial decision. Palermo v. Department of the Navy ,
120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). As noted, the initial
decision informed the appellant that a petition for review had to be filed by2
September 13, 2011, ID at 1; however, he did not submit his petition for review
until October 16, 2023—more than 12 years after the deadline, PFR File, Tab 4.
The appellant did not respond to the Office of the Clerk of the Board’s
acknowledgement letter on timeliness, and he has not otherwise alleged that he
received the initial decision more than 5 days after its issuance or that he timely
filed his petition for review within 30 days of his delayed receipt of the initial
decision. Thus, we find that the appellant’s petition for review was untimely
filed.
¶5The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Palermo, 120 M.S.P.R.
694, ¶ 4; 5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an
untimely petition for review has the burden of establishing good cause for the
untimely filing by showing that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4.
To determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of his excuse and the party’s showing of
due diligence, whether he is proceeding pro se, and whether he has presented
evidence of the existence of circumstances beyond his control that affected his
ability to comply with the time limits or of unavoidable casualty or misfortune
that similarly shows a causal relationship to his inability to timely file his
petition. Id. Here, the appellant’s 12-year delay in filing his petition for review
is significant, and the record shows that he was represented by counsel throughout
that period. Cf. Dow v. Department of Homeland Security , 109 M.S.P.R. 633,
¶¶ 3, 8 (2008) (finding a delay of more than 1 month to be significant,
notwithstanding the appellant’s pro se status); IAF, Tab 9; PFR File, Tab 4 at 4.
Although the appellant argues that his legal representation throughout the
proceedings below was inadequate and suggests that his counsel withdrew the
appeal without his authorization, PFR File, Tab 4 at 1-3, he has not explained
how the withdrawal of his appeal precluded him from timely filing a petition for3
review of the initial decision. Furthermore, it is well established that the
appellant is responsible for the errors of his chosen representative. Sofio v.
Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981); see Helmstetter v.
Department of Homeland Security , 106 M.S.P.R. 101, ¶ 11 (2007) (finding that
the appellant bears the ultimate responsibility for pursuing his appeal). Finally,
he has not shown, or alleged, that any other circumstances affected his ability to
comply with the time limit. Therefore , we conclude that the appellant has failed
to demonstrate good cause for the untimeliness of his petition for review.
We deny the appellant’s request to reopen his appeal of the agency’s removal
decision.
¶6We also consider the appellant’s petition for review as a request to reopen
his withdrawn appeal. Little v. Government Printing Office , 99 M.S.P.R. 292,
¶ 10 (2005). A withdrawal is an act of finality that removes the appeal from the
Board’s jurisdiction. Bilbrew v. U.S. Postal Service , 111 M.S.P.R. 34, ¶ 14
(2009); Little, 99 M.S.P.R. 292, ¶ 10. Absent unusual circumstances, such as
misinformation or new and material evidence, the Board will not reinstate an
appeal once it has been withdrawn merely because the appellant wishes to
proceed before the Board or to cure an untimely petition for review. Cason v.
Department of the Army , 118 M.S.P.R. 58, ¶ 5 (2012); Bilbrew, 111 M.S.P.R. 34,
¶ 14. Although a voluntary withdrawal must be clear, unequivocal, and decisive,
withdrawal of the appeal by the appellant’s designated representative has the
same effect as a withdrawal by the appellant himself. Bilbrew, 111 M.S.P.R. 34,
¶ 14. As noted, the Board has consistently held that an appellant is responsible
for the actions of his chosen representative. Id.; Sofio v. Internal Revenue
Service, 7 M.S.P.R. 667, 670. A case may be reopened in the interests of justice
where the evidence is of such weight as to warrant a different outcome, but the
Board will reopen a case only if the appellant has exercised due diligence in
seeking reopening. Bilbrew, 111 M.S.P.R. 34, ¶ 14 . Furthermore, the Board’s
authority to reopen a case is limited by the requirement that such authority be4
exercised within a reasonably short period of time. Trachtenberg v. Department
of Defense, 104 M.S.P.R. 640, ¶ 12 (2007). That period of time is usually
measured in weeks, not months or years. Id.
¶7Here, the appellant has not provided new evidence or alleged that the
withdrawal was the result of misinformation. Although he alleges that the
administrative judge accepted counsel’s withdrawal request without the
appellant’s approval, PFR File, Tab 4 at 1-3, he does not allege that his
designated representative withdrew the appeal against his express directions or
without his knowledge. Indeed, the appellant’s failure to timely object to the
dismissal of his appeal in the intervening years reflects that the withdrawal was
authorized; moreover, it shows that he did not exercise due diligence in seeking
reinstatement of his appeal, as he waited 12 years after the initial decision was
issued to do so. See Bilbrew, 111 M.S.P.R. 34, ¶ 14 (finding that the appellant
did not exercise due diligence when he waited 2 months after the initial decision
was issued to file a request to reopen). In conclusion, the appellant has not
provided any evidence of circumstances that would warrant a different outcome,
and therefore, we deny the appellant’s request to reopen this appeal.
ORDER
¶8In light of the foregoing, we dismiss the petition for review as untimely
filed. This is the final decision of the Merit Systems Protection Board regarding
the timeliness of the petition for review. The initial decision remains the final
decision of the Board regarding the appellant’s withdrawal of his appeal of his
April 20, 2011 removal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 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.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420. If you have a representative in this case, and
your representative receives this decision before you do, then you must file with
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 the7
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Bruner_Hiawatha_C_DA-0752-11-0467-I-1_Final_Order.pdf | 752-11-04 | HIAWATHA C. BRUNER v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-0752-11-0467-I-1, September 4, 2024 | DA-0752-11-0467-I-1 | NP |
579 | https://www.mspb.gov/decisions/nonprecedential/Dowd_Theodore_S_DC-0752-19-0646-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THEODORE S. DOWD,
Appellant,
v.
GOVERNMENT PUBLISHING
OFFICE,
Agency.DOCKET NUMBER
DC-0752-19-0646-I-2
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Wayne Johnson , Esquire, Winter Park, Florida, for the appellant.
Thomas Kelly , Esquire, and Melissa S. Hatfield , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
apply the proper standards to the agency’s charge and the appellant’s disability
discrimination claim, we AFFIRM the initial decision.
BACKGROUND
The following facts, as set forth in the initial decision and in the record, are
undisputed. MSPB Docket No. DC-0752-19-0646-I-2, Appeal File (I-2 AF),
Tab 25, Initial Decision (ID). The appellant was a Forklift Operator, a position
that has substantial physical requirements. I-2 AF, Tab 17 at 4 (parties’
stipulations). He was removed in 2017 based on charges of absence without leave
(AWOL), failure to follow leave procedures, failure to follow supervisory
instruction, and unprofessional and discourteous conduct. On appeal, the
appellant alleged disability discrimination. In an initial decision in that matter,
the administrative judge found all of the charges sustained, save the AWOL
charge, and she found that the appellant established his claim of disability
discrimination. She reversed the action and mitigated the removal to a 45-day
suspension. Dowd v. Government Publishing Office , MSPB Docket No.
DC-0752-17-0470-I-1, Initial Decision (Dec. 29, 2017). That decision became
the Board’s final decision when neither party filed a petition for review. Several
days after that initial decision, the appellant returned to duty and was placed in2
his former position but, because of his physical restrictions limiting his ability to
carry out the required functions of a Forklift Operator, which included substantial
lifting, standing, and sitting, he did not perform any work in that position, I-2 AF,
Tab 17 at 4; ID at 4, and he immediately submitted a request for light duty as a
disability-based reasonable accommodation. Hearing Recording (HR) (testimony
of the appellant); MSPB Docket No. DC-0752-19-0646-I-1, Initial Appeal File
(IAF), Tab 6 at 111; ID at 4. After the agency determined that no light duty was
available, its reasonable accommodation panel convened to assess the situation
and it met on several occasions. IAF, Tab 6 at 106-07, 113-16 (notes of
reasonable accommodation panel meetings). Ultimately, because of the extent of
the appellant’s restrictions and its unsuccessful search for any vacant funded
positions to which he could be reassigned, the panel found that no reasonable
accommodation could be offered. Id. at 104-05, 112; ID at 4. When the appellant
requested reconsideration, the panel reconvened to again consider his request, but
concluded that he could not be accommodated, either by restructuring his Forklift
Operator position or by reassignment. IAF, Tab 6 at 66; ID at 4-5.
Subsequently, the agency removed the appellant based on medical inability
to perform. IAF, Tab 6 at 26; ID at 5. On appeal, the appellant alleged disability
discrimination and retaliation for having filed his previous Board appeal. IAF,
Tab 1; I-2 AF, Tab 5 at 5. Following the requested hearing, I-2 AF, Tabs 20-21,
the administrative judge issued an initial decision in which he found that the
charge was sustained, ID at 6-7, and that the appellant failed to establish his
affirmative defenses of disability discrimination, ID at 8-12, and retaliation for
having filed a Board appeal in which he claimed disability discrimination, ID
at 12-13. Accordingly, the AJ affirmed the removal action. ID at 2, 14.
The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, and the agency has filed a response. PFR File, Tab 3.3
ANALYSIS
Although the administrative judge did not properly analyze the agency’s charge,
he correctly concluded that the charge was proven.
The appellant does not challenge on review the administrative judge’s
sustaining of the charge. However, we note that, in considering the charge of
medical inability to perform, the administrative judge relied on Sanders v.
Department of Homeland Security , 122 M.S.P.R. 144, ¶¶ 2, 11-16, 18-19, aff’d
per curiam, 625 F. App’x 549 (Fed. Cir. 2015), and Brown v. Department of the
Interior, 121 M.S.P.R. 205, ¶¶ 4, 8 (2014). In addressing the same charge as
brought by the agency in this case, those cases relied upon 5 C.F.R. § 339.206,
which provides that an employee may not be removed from a position subject to
medical standards or physical restrictions “solely on the basis of medical
history.” The regulation provides an exception only if the condition itself is
disqualifying, recurrence “is based on reasonable medical judgment,” and the
position’s duties are such that a recurrence “would pose a significant risk of
substantial harm to the health and safety of the . . . employee or others that cannot
be eliminated or reduced by reasonable accommodation or any other agency
efforts to minimize risk.” Although the administrative judge in this case did not
specifically cite to 5 C.F.R. § 339.206, he found, based on the parties’
stipulations and the opinions of the appellant’s treating physicians, that the
appellant is medically disqualified from performing the duties of his Forklift
Operator position, and he sustained the charge on that basis. ID at 6-7.
After the initial decision in this case was issued, the Board issued Haas v.
Department of Homeland Security , 2022 MSPB 36, ¶¶ 9-19, wherein it addressed
when it is appropriate for an agency to rely on 5 C.F.R. § 339.206 in removing an
employee for medical inability to perform and when it is not, and the differing
burdens of proof for the agency under both circumstances. The Board found that,
when an employee’s medical history is the sole basis for his removal, 5 C.F.R.
§ 339.206 is the proper standard for the agency’s charge and requires proof4
consistent with that provision, but that for cases involving a charge of inability to
perform that do not fall under 5 C.F.R. § 339.206 because the removal is based on
the employee’s existing condition or a combination of both factors, the agency
must prove either a nexus between the employee’s medical condition and
observed deficiencies in his performance or conduct, or a high probability, given
the nature of the work involved, that his condition may result in injury to himself
or others.2 Haas, 2022 MSPB 36, ¶¶ 11-12, 15. The Board further found that the
latter standard has been further described as requiring the agency to establish that
the appellant’s medical condition prevents him from being able to safely and
efficiently perform the core duties of his position. Id., ¶ 15.
As noted, it appears that the administrative judge perceived that the
appellant’s removal was based on his medical history. In fact, the agency based
the appellant’s removal on his current medical condition. IAF, Tab 6 at 26.
Because the administrative judge did not have the benefit of the Board’s decision
in Haas when he adjudicated this case, and because the record is fully developed
on the relevant issues, we can apply the proper standard. See, e.g., Forte v.
Department of the Navy , 123 M.S.P.R. 124, ¶ 27 (2016) (finding that the Board
may decide an issue on review, rather than remanding, when the administrative
judge applied an incorrect standard but the record was fully developed).
The appellant’s position description identifies as the major duties of his
position the operation of a forklift and also identifies as a major duty the moving
of packages and cartons from a conveyer. IAF, Tab 6 at 77. The position
description also identifies as a major duty the lifting of packages weighing
between 40 and 90 pounds. Id. Moreover, the appellant’s supervisor has
repeatedly specified that the lifting requirement of the Forklift Operator position
is both continuous and intermittent, 8 hours per day. IAF, Tab 7 at 7. Although
2 Based on these findings, the Board in Haas overruled Sanders and Brown and other
similar cases to the extent that, in them, the Board applied 5 C.F.R. § 339.206 to a
charge of medical inability to perform when the appellant was removed based on his
current medical condition or impairment. Haas, 2022 MSPB 36, ¶ 14.5
the administrative judge did not specifically find that lifting these weights is an
essential function of the appellant’s position, it is clear from the position
description that it is. See Clemens v. Department of the Army , 120 M.S.P.R. 616,
¶ 6 (2014) (stating that evidence of whether a particular function is essential
includes the written position description, the employer’s judgment as to which
functions are essential, and the amount of time spent performing the function).
We therefore find that those duties constitute core duties of the appellant’s
position.
Based on the appellant’s medical conditions and significant attendant
restrictions, including not lifting more than 10 pounds, the administrative judge
determined that the agency proved that the appellant was unable to perform the
duties required of his position, thereby proving its charge. ID at 5-7. Indeed, the
appellant stipulated that his “permanently disabling condition disqualifies him
from his position of record,” as a Forklift Operator. I-2 AF, Tab 17 at 6. In
analyzing whether the agency has met its burden, the Board will consider whether
a reasonable accommodation short of reassignment exists that would enable the
appellant to safely and efficiently perform his core duties. Clemens,
120 M.S.P.R. 616, ¶ 5. The appellant does not dispute the agency’s showing that
it could not provide a reasonable accommodation that would enable him to
perform his position’s core duties, and that the only available option was
reassignment. IAF, Tab 6 at 14. Therefore, we find that, under the correct
standard, the agency proved its charge that the appellant is medically unable to
perform the duties of his Forklift Operator position.
The appellant failed to prove his claim of disability discrimination.
The Board adjudicates claims of disability discrimination raised in
connection with an otherwise appealable action under the substantive standards of
section 501 of the Rehabilitation Act. Pridgen v. Office of Management &
Budget, 2022 MSPB 31, ¶ 35. The Rehabilitation Act has incorporated the
standards of the Americans with Disabilities Act, as amended by the Americans6
with Disabilities Act Amendments Act of 2008. Id. Therefore, we apply those
standards here to determine if there has been a Rehabilitation Act violation. Id.
A qualified individual with a disability is one who can “perform the essential
functions of the . . . position that such individual holds or desires” with or
without reasonable accommodation. 42 U.S.C. § 12111(8). An employer is
required to provide reasonable accommodation to an otherwise qualified
individual with a disability. 42 U.S.C. § 42112(b)(5). The administrative judge
in this case did not determine whether the appellant is a qualified individual with
a disability. ID at 8-12. The Board has recently clarified that only an otherwise
qualified individual with a disability is entitled to relief for a claim of
status-based discrimination or denial of reasonable accommodation. Haas,
2022 MSPB 36, ¶ 29.
We have agreed with the administrative judge that the appellant could not
carry out the essential function of his position. The appellant challenges the
agency’s unsuccessful efforts to locate a vacant funded position to which he could
be reassigned, arguing that he could have been placed as a Printing Services
Assistant. PFR File, Tab 1 at 5-6. The administrative judge found that the
appellant provided no evidence to show that he was medically qualified to
perform in that position, which was encumbered until the incumbent’s retirement
6 months before the appellant was removed, and which was then set for
elimination and not thereafter filled. ID at 11. The appellant has not shown that
the administrative judge erred in concluding that the appellant failed to show that
a reasonable accommodation existed in the form of a vacant funded position for
which he was qualified and which the agency denied him. For these reasons, the
appellant cannot prevail on his claim of disability discrimination based on the
agency’s failure to reasonably accommodate him.3
3 The appellant claims on review that the agency failed to engage in the interactive
process. PFR File, Tab 1 at 6-8. However, even if the agency did fail to do so, a
conclusion with which we disagree, any such failure, standing alone, does not constitute
a per se reasonable accommodation violation; rather, when an agency fails to engage in7
The appellant failed to prove that the agency retaliated against him based on his
earlier Board appeal in which he claimed disability discrimination.
The administrative judge found that the appellant failed to prove that his
protected activity was a motivating factor in his removal. ID at 12-13. The
administrative judge acknowledged that the appellant’s protected activity
consisted of his prior Board appeal in which he alleged that the agency retaliated
against him for requesting reasonable accommodation. Id. The Board has
recognized that this activity is protected by the Rehabilitation Act, see Pridgen,
2022 MSPB 31, ¶ 44 (recognizing that requesting reasonable accommodation and
complaining of disability discrimination are activities protected by the
Rehabilitation Act), and that, in the context of retaliation claims arising under the
Rehabilitation Act, the appellant must prove that this prior activity was the “but
for” cause of the retaliation, id., ¶ 46. We agree with the administrative judge
that the appellant failed to meet the lesser burden of proving that his protected
activity was a motivating factor in his removal, and therefore find that he
necessarily failed to meet the more stringent “but for” standard that applies to his
retaliation claim. ID at 12-13.
The administrative judge found that, directly after the appellant’s return to
duty, the agency engaged in a months-long accommodation process, ultimately
concluding that his medical limitations precluded him from performing in his
position of record or any other position within the agency, and that there was no
evidence that any official involved in the removal or the reasonable
accommodation process made any comments or remarks suggesting an animus
against the appellant for filing his Board appeal. ID at 13. Moreover, the
administrative judge found that, given the nature of the appellant’s limitations
and the unavailability of any other position to which he could be reassigned,
removing him for medical inability to perform was the only option available. Id.
the interactive process, the appellant must show that the agency’s inaction resulted in a
failure to provide a reasonable accommodation. Sanchez v. Department of Energy ,
117 M.S.P.R. 155, ¶ 18 (2011).8
Notwithstanding these findings, the appellant argues on review that the agency
made no attempt to modify his position or find other suitable employment for
him. PFR File, Tab 1 at 9. This claim constitutes mere disagreement with the
administrative judge’s well-supported contrary findings, which are based on the
evidence of record. The appellant also argues on review that the proposing
official knew about his prior Board appeal and that his prior removal had been
“overturned.” Id. at 9-10. However, a showing that the proposing official had
such knowledge is insufficient, standing alone, to prove that the appellant’s
protected activity was a motivating factor in his removal, much less the “but for”
cause of his removal.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain10
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 11
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to 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. 12
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Dowd_Theodore_S_DC-0752-19-0646-I-2_Final_Order.pdf | 2024-09-04 | THEODORE S. DOWD v. GOVERNMENT PUBLISHING OFFICE, MSPB Docket No. DC-0752-19-0646-I-2, September 4, 2024 | DC-0752-19-0646-I-2 | NP |
580 | https://www.mspb.gov/decisions/nonprecedential/Jones_Aaron_L_DC-0752-21-0345-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AARON L. JONES,
Appellant,
v.
GOVERNMENT PUBLISHING
OFFICE,
Agency.DOCKET NUMBER
DC-0752-21-0345-I-1
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Sandi Boyd , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the agency’s demotion action on the charges of failure to follow
applicable rules, laws, regulations, or policies and careless or negligent
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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
performance of duties. For the reasons discussed below, we GRANT the
agency’s petition for review and REVERSE the administrative judge’s finding
that the agency failed to prove the charge of careless or negligent performance of
duties. The appellant’s demotion is SUSTAINED.
BACKGROUND
The appellant was a PQ-0083-07 Supervisory Police Officer for the U.S.
Government Publishing Office (GPO) Uniformed Police Branch, Security
Services Division in Washington, D.C. Initial Appeal File (IAF), Tab 1 at 1, 7.
On August 11, 2020, a GPO employee (hereinafter GPO Employee) entered a
security checkpoint building in the rear of the GPO parking lot and placed his
lunch bag in the X -ray machine for screening. IAF, Tab 19 at 92. The Special
Police Officer on duty identified what appeared to be a firearm and notified the
GPO Police Control Center. Id. A GPO Police Officer responded to the scene
shortly thereafter and verified that the outer pocket of the GPO Employee’s bag
contained a loaded Glock Model 33 semi-automatic firearm. Id. The GPO
Employee told the responding GPO Officer that he had forgotten he had left his
pistol in his lunch bag and produced permits to carry the firearm from Utah,
Florida, Maryland, and Pennsylvania. IAF, Tab 7 at 11. At some point it became
known that the GPO Employee was not licensed to carry a firearm in the District
of Columbia (D.C.) and that he did not have a firearm registered in D.C. See
IAF, Tab 7 at 9, Tab 8 at 18-19, Tab 9 at 4.
The responding GPO Officer contacted the appellant, his supervisor, and
when the appellant arrived on the scene, the appellant removed the firearm from
the outer pocket and placed it inside the lunch bag. IAF, Tab 19 at 92. The
appellant then allowed the responding GPO Officer and a second GPO Police
Officer to escort the GPO Employee to his truck in the GPO lot and allowed the
responding GPO Officer to place the GPO Employee’s bag containing the loaded
firearm into the rear of the GPO Employee’s truck. Id. The appellant then
3
instructed another officer to inform the responding GPO Officer to conduct a
wants and warrants check on the GPO Employee, which came back clear. Id.; see
also IAF, Tab 7 at 9, 11. Shortly afterward, the appellant allowed the GPO
Employee to drive his vehicle with the loaded gun off GPO property and back to
his residence in Maryland. IAF, Tab 19 at 92.
By letter dated November 17, 2020, the agency proposed demoting the
appellant based on one charge of failure to follow applicable rules, laws,
regulations, or policies and one charge of careless or negligent performance of
duties as a result of the August 2020 incident when the appellant failed to
confiscate the GPO Employee’s firearm and place him under arrest for the illegal
possession of a firearm. Id. at 91-95. On March 9, 2021, the agency sustained
the charges and the decision to demote the appellant. IAF, Tab 1 at 7-9. The
appellant was demoted from a PQ-0083-07 Supervisory Police Officer to a
PQ-0083-05 non-lead Police Officer effective March 14, 2021. Id. at 7.
The appellant filed the instant Board appeal on April 13, 2021. IAF, Tab 1.
After holding the requested hearing, the administrative judge reversed the
agency’s demotion action. IAF, Tab 39, Initial Decision (ID) at 1. The
administrative judge concluded that the agency failed to prove by a
preponderance of the evidence the charge of failure to follow applicable rules,
laws, regulations, or policies; specifically, the administrative judge found that the
agency failed to prove that the appellant had violated GPO Directive 825.38B,
GPO Directive 630.5A, D.C. Code § 22-4504,2 D.C. Code § 7-2506.01, and
18 U.S.C. § 930.3 ID at 4-10; IAF, Tab 19 at 92-94. He also concluded that the
2 In the proposal letter, the agency alleges that the appellant violated D.C. Code
§ 22-5504 and cites the language of that provision. IAF, Tab 19 at 93. However, the
language cited comes from D.C. Code § 22-4504. The administrative judge did not
identify this error in the initial decision. See ID at 7.
3 GPO Directive 825.38B provides that, with the exception of law enforcement
personnel, no person entering or on GPO property will carry or possess a firearm; GPO
Directive 630.5A provides that possession of a weapon on GPO property will not be
tolerated and may result in corrective action; D.C. Code § 22-4504 prohibits persons in
D.C. from carrying a pistol without a D.C. license; D.C. Code § 7-2506.01 states that no
4
agency failed to show that the appellant’s actions—returning the GPO
Employee’s loaded firearm to him on Federal property and failing to arrest him—
were negligent. ID at 10-11. Because the administrative judge reversed the
demotion action, he ordered the agency to return the appellant to his supervisory
position with back pay plus interest. ID at 11-12. The initial decision did not
address the issue of interim relief.
The agency has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The appellant has filed a response. PFR File, Tab 3. The agency has filed
a reply. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency’s failure to provide interim relief does not warrant dismissal of its
petition for review.
The Board expects that an initial decision in which the appellant is the
prevailing party will contain a statement as to whether interim relief is provided
effective upon the date of the decision, pending the outcome of any petition for
review. Stewart v. Department of Transportation , 2023 MSPB 18, ¶ 11; see
5 C.F.R. § 1201.111(b)(4). However, when an appellant is the prevailing party in
an initial decision issued under 5 U.S.C. § 7701(b), but the initial decision is
silent on the issue of interim relief, the agency is required to provide interim
relief by operation of statute. Stewart, 2023 MSPB 18, ¶ 10. Thus, there is no
need for the Board to order interim relief at this stage, as the appellant requests.
The appellant’s request regarding interim relief is akin to a petition to
enforce an interim relief order while a petition for review is pending; the Board
treats such petitions as motions to dismiss the agency’s petition for review. See
Johnson v. Department of Veterans Affairs , 2023 MSPB 9, ¶ 7. Although it is
undisputed that the agency did not make any efforts to provide interim relief
while its petition for review was pending, we do not exercise our discretion to
person shall possess ammunition in D.C.; and 18 U.S.C. § 930 concerns persons
knowingly possessing or causing to be present a firearm in a Federal facility. IAF,
Tab 19 at 92-94.
5
dismiss the petition for review on that basis. See Thome v. Department of
Homeland Security , 122 M.S.P.R. 315, ¶ 16 (2015) (the Board’s authority to
dismiss an agency petition under 5 C.F.R. § 1201.116(e) is discretionary, not
mandatory). The agency did not have the benefit of the Board’s decision in
Stewart, and therefore, it did not have clear notice that it was required to provide
interim relief if the initial decision was silent on that issue.4
The administrative judge considered the correct standard of review.
The agency argues on review that the appellant’s position as a police
officer and supervisor required a different standard of review than that of an
ordinary employee and that the administrative judge thus erred by failing to
analyze its decision to hold the appellant to a higher standard of conduct because
of his position as a law enforcement officer and supervisor. PFR File, Tab 1
at 14-16. The agency appears to erroneously conflate separate issues here. There
is no separate standard of review in adverse action cases for law enforcement
officers or supervisors. Although the Board has held that an agency is entitled to
hold law enforcement officers and supervisors to a higher standard of conduct in
the context of evaluating the reasonableness of the agency’s chosen penalty, the
reasonableness of the agency’s penalty was not at issue in the initial decision
because the administrative judge did not sustain the agency’s charges. See, e.g.,
Neuman v. U.S. Postal Service , 108 M.S.P.R. 200, ¶ 23 (2008); Brown v. U.S.
Postal Service, 64 M.S.P.R. 425, 433-34 (1994); see also Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-07 (1981). Thus, the agency’s argument is
without merit.
4 Although we are not granting the appellant any relief for the agency’s failure to
provide interim relief at this time, he may still have the opportunity to obtain such
relief. Pursuant to 5 C.F.R. § 1201.116(g), if the initial decision granted the appellant
interim relief, but the appellant is not the prevailing party in the final Board order
disposing of a petition for review, and the appellant believes that the agency has not
provided full interim relief, the appellant may seek to file an enforcement petition with
the regional office under 5 C.F.R. § 1201.182. Upon our issuance of this Board final
order, the appellant may file a motion with the regional office pursuant to 5 C.F.R.
§ 1201.116(g) regarding the agency’s apparent failure to provide interim relief.
6
The agency similarly claims that the administrative judge failed to apply
the proper and heightened standard for police officers and supervisors in
analyzing whether the appellant was careless or negligent in the performance of
his duties. PFR File, Tab 1 at 18. We also find this argument unavailing. The
administrative judge cited the correct standard for negligence in the performance
of official duties. ID at 10 (citing Mendez v. Department of the Treasury ,
88 M.S.P.R. 596, ¶ 26 (2001) (stating that “[c]ulpable negligence in the
performance of official duties is a failure to exercise the degree of care required
under the particular circumstances, which a person of ordinary prudence in the
same situation and with equal experience would not omit”)); see also Thomas v.
Department of Transportation , 110 M.S.P.R. 176, ¶ 9 (2008), aff’d per curiam ,
330 F. App’x 920 (Fed. Cir. 2009). To the extent that the agency is arguing that
the administrative judge applied that standard incorrectly, we are unpersuaded
because the administrative judge specifically found that “the appellant exercised
the degree of care required of a law enforcement officer with more than 25 years
of experience” in concluding that the agency failed to show that the appellant was
negligent. ID at 11. Notwithstanding this finding and the outcome of the
negligence charge, which is addressed further below, the administrative judge’s
conclusion shows that he considered the correct standard.
The administrative judge erred in analyzing the charge of careless or negligent
performance of duties.
The agency argues that the administrative judge both abused his discretion
and made an error of law affecting the outcome of the case when he found that
D.C. Code § 22-4504.02 allowed the GPO Employee to transport his firearm
through D.C. to his home in Maryland. PFR File, Tab 1 at 19-22. D.C. Code
§ 22-4504.02 provides that an individual “not otherwise prohibited by the law
from transporting, shipping, or receiving a firearm shall be permitted to transport
a firearm for any lawful purpose from any place where he may lawfully possess
and carry the firearm to any other place where he may lawfully possess and carry
7
the firearm” if the firearm is transported in accordance with the rest of that
section. IAF, Tab 19 at 95. In the proposal, the agency referenced D.C. Code
§ 22-4504.02 in Charge 2 in alleging that the appellant was careless and/or
negligent in the performance of his duties because he returned the loaded firearm
to the GPO Employee, even though the GPO Employee was not legally allowed to
possess and carry a firearm on Federal property, and because he then allowed the
GPO Employee to drive into D.C. with the firearm. Id. In the initial decision, the
administrative judge concluded that the agency failed to prove the appellant’s
decision to return the GPO Employee’s loaded firearm was negligent or careless
in part because D.C. Code § 22-4504.02 allows an individual to transport a
firearm to a place where he may lawfully possess and carry the firearm, and the
appellant directed the GPO Employee to transport his gun to Maryland where it
was registered. ID at 11. The administrative judge also mentioned D.C. Code
§ 22-4504.02 in his discussion of Charge 1. ID at 8-9.
We agree with the agency that the administrative judge erroneously applied
D.C. Code § 22-4504.02 to the facts at issue here and that the error affected the
outcome of the case as to Charge 2. See 5 C.F.R. § 1201.115. As the agency
points out, the administrative judge ignored the fact that D.C. Code § 22-4504.02
explicitly provides that an individual shall be permitted to transport a firearm
only if he is first traveling from a “place where he may lawfully possess and carry
the firearm.” See PFR File, Tab 1 at 20-21; see also Pirkkala v. Department of
Justice, 123 M.S.P.R. 288, ¶ 7 (2016) (finding that the starting point for every
case involving statutory construction is the language of the statute itself and that,
when statutory language is clear, it must control absent clearly expressed
legislative intent to the contrary). The GPO Employee was not licensed to carry a
firearm in D.C. and did not have a firearm registered in D.C., and the appellant
was aware of that fact. See IAF, Tab 7 at 9, Tab 8 at 18-19, Tab 9 at 4, Tab 28
at 10. We find that this was a significant legal error in the administrative judge’s
8
conclusion that the appellant was not negligent or careless in returning the GPO
Employee’s loaded firearm. See ID at 11.
With respect to the agency’s concurrent argument that the administrative
judge’s application of D.C. Code § 22-4504.02 constituted an abuse of discretion,
we disagree. See PFR File, Tab 1 at 21. The abuse of discretion standard is a
very high standard that allows for great deference, and here, the administrative
judge was not abusing his discretion as he was only analyzing—albeit incorrectly
—whether the appellant complied with a provision of the D.C. Code that the
agency cited in its proposal letter. See ID at 8, 11; IAF, Tab 19 at 95; see also
Lipscomb v. Department of Defense , 69 M.S.P.R. 484, 487 (1996).
The agency also argues on review that the initial decision contains an
erroneous finding of material fact with respect to the appellant’s decision to allow
the GPO Employee to take his loaded firearm back home to Maryland. PFR File,
Tab 1 at 11. The Board will grant a petition for review when the petitioner makes
a showing that the initial decision contains erroneous findings of material fact.
5 C.F.R. § 1201.115(a). To be material, an alleged factual error must be of
sufficient weight to warrant an outcome different from that of the initial decision,
and the petitioner must explain why the challenged factual determination is
incorrect and identify specific evidence in the record that demonstrates the error.
Id.
In the initial decision, the administrative judge suggests that the appellant’s
decision to allow the GPO Employee to take his loaded gun back home was
reasonable, and not negligent or careless, in part because the appellant testified
that there was no facility nearby to properly store or clear the loaded firearm and
the appellant was worried about the gun misfiring. ID at 5, 7-8, 11. On review,
the agency argues that the administrative judge’s conclusion that there was no
facility nearby to clear a loaded firearm was an erroneous finding of material fact
because it is contradicted by the appellant’s own testimony that there was in fact
a nearby location where the GPO Employee’s gun could have been safely
9
unloaded. PFR File, Tab 1 at 11. It argues that “an analysis using the corrected
factual information will lead to a different result.” Id. at 12.
We agree that the administrative judge made a material factual error here.
The appellant’s own hearing testimony establishes that there is a “clearing barrel”
inside the GPO building where all officers are able to safely handle their weapons
and ammunition at the beginning of each shift. See IAF, Tab 37-4, Hearing
Recording (HR) (Jones 4) at 17:00-18:45. The GPO building is adjacent to the
security checkpoint building and GPO parking lot where the events at issue took
place. See ID at 2; IAF, Tab 19 at 92. Thus, contrary to the administrative
judge’s finding, there was indeed a facility nearby that the appellant was familiar
with where the appellant could have safely unloaded the GPO Employee’s
unregistered and unlicensed firearm instead of giving it back as he found it.
Furthermore, we find, given the proper reading of D.C. Code § 22-4504.02 and
the presence of the clearing barrel, that the appellant was careless or negligent by
failing to remove the ammunition from the GPO Employee’s firearm to make it
safe and by allowing the GPO Employee to drive through D.C. back to Maryland
with the loaded firearm.
The administrative judge failed to consider all the relevant evidence regarding the
charge of careless or negligent performance of duties.
The agency also argues on review that the administrative judge erred by
ignoring important witness testimony on a disputed issue and by failing to explain
the basis for his credibility determinations regarding the agency’s policy on
making arrests during August 2020. PFR File, Tab 1 at 16-18. As the Board has
consistently stated, an initial decision must summarize the evidence and resolve
issues of credibility. Hillen v. Department of the Army , 35 M.S.P.R. 453, 458
(1987); Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589
(1980). To resolve credibility issues, an administrative judge must identify the
factual questions in dispute, summarize the evidence on each disputed question,
state which version he believes, and explain in detail why he found the chosen
10
version more credible, considering such factors as: (1) the witness’s opportunity
and capacity to observe the event or act in question; (2) the witness’s character;
(3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of
bias; (5) the contradiction of the witness’s version of events by other evidence or
its consistency with other evidence; (6) the inherent improbability of the
witness’s version of events; and (7) the witness’s demeanor. Hillen, 35 M.S.P.R.
at 458. The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). When an
administrative judge’s findings are not based on the observation of witnesses’
demeanor, the Board is free to reweigh the evidence and substitute its own
judgment on credibility issues. Id. at 1302. Moreover, the Board may overturn
an administrative judge’s credibility determinations when they are incomplete,
inconsistent with the weight of the evidence, and do not reflect the record as a
whole. Faucher v. Department of the Air Force , 96 M.S.P.R. 203, ¶ 8 (2004).
In the initial decision, the administrative judge summarily concluded that
the agency did not prove that the appellant acted negligently in failing to arrest
the GPO Employee because the appellant’s witness, K.A., a personal friend and
former GPO police officer and subordinate, testified that the agency had
instructed GPO Police officers not to make arrests in August 2020 unless there
was an imminent threat to life. ID at 10; see also IAF, Tab 37-5, HR (Jones 5)
at 5:50, 8:50. The administrative judge concluded, therefore, that the appellant
“appeared to be following the office protocol and GPO policy” by not arresting
the GPO Employee. ID at 10. However, not only did the administrative judge
fail to explain in detail why he found K.A. credible, he failed to identify and
discuss testimony from the agency’s witness, the Chief Security Officer and
deciding official, that no such policy existed. See Spithaler, 1 M.S.P.R. at 589
11
(an initial decision must identify all material issues of fact and law, summarize
the evidence, and explain how any issues of credibility were resolved and why).
At the hearing, K.A. testified that he heard officers talking about an
instruction not to make arrests unless there was an imminent threat to life and that
he then heard that instruction himself in roll call around August 2020, though he
did not remember the exact details. IAF, Tab 37-5, HR (Jones 5) at 5:35, 10:00.
The deciding official testified, to the contrary, that he was not aware of any such
instruction and that the agency’s policy during August 2020 was to overlook
misdemeanors and to continue making arrests on all felonies, which was relayed
in roll call and the police activity reports for approximately 2 years. IAF,
Tab 37-1, HR (Jones 1) at 27:20, 29:35. To this end, the administrative judge
failed to identify and discuss that the deciding official testified that the appellant
understood this policy because the appellant put it in his own activity reports, and
that the deciding official testified that all police officers receive training on how
to handle felonies, such as an individual trying to enter the building with a
firearm without a concealed weapon permit in D.C., and to make an arrest in that
situation. Id. at 29:15 to 31:30.
We note that, on review, the agency also argues that the administrative
judge erroneously failed to address various arrest records showing that an arrest
has been made each time an individual attempted to enter the GPO building with
an unpermitted loaded firearm, including a similar incident that took place only
weeks before the incident at issue here. PFR File, Tab 1 at 18-19; IAF, Tab 28
at 18-47. In this vein, the administrative judge also failed to identify and discuss
K.A.’s testimony that he recalled a similar firearm incident in June 2020 where an
arrest was made and that, in his 20-plus year career at GPO, he could not recall a
time when someone who was not a police officer attempted to bring a firearm into
the building and was not arrested. IAF, Tab 37-5, HR (Jones 5) at 13:05-19:00.
Thus, the administrative judge failed to discuss significant evidence relevant to a
Hillen determination in this case.
12
We find the deciding official a more credible witness and reject the
administrative judge’s credibility findings on this arrest policy issue because they
are incomplete and inconsistent with the weight of the evidence. See Faucher,
96 M.S.P.R. 203, ¶ 18; see also Wallace v. Department of Commerce ,
106 M.S.P.R. 23, ¶¶ 14–16 (2007) (rejecting an administrative judge’s credibility
determinations for failure to consider conflicting evidence). Furthermore, given
all of the above, we find that the agency proved that the appellant was negligent
under the applicable standard of care for returning the GPO Employee’s loaded
firearm to him, which was unregistered and unlicensed in D.C., and for failing to
arrest the GPO Employee for the illegal possession of a firearm in D.C., contrary
to GPO policy. See Mendez, 88 M.S.P.R. 596, ¶ 26. We therefore sustain the
charge of careless or negligent performance of duties. See Burroughs v.
Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that, when
more than one event or factual specification supports a single charge, proof of
one or more, but not all, of the supporting specifications is sufficient to sustain
the charge); see also Hickman v. Department of Justice , 11 M.S.P.R. 153, 155
(1982) (finding that although the agency cited to a criminal statute in its proposal
notice, the agency charged the employee with particular conduct and not a
violation of the criminal statute, and sustaining the charge upon proof of that
particular conduct).5
The agency proved a connection between the appellant’s misconduct and the
efficiency of the service.
Because the administrative judge found that the agency failed to prove the
charges and reversed the appellant’s demotion, he did not make findings as to
whether there is a sufficient nexus between the appellant’s misconduct and the
efficiency of the service, nor did he determine whether demotion is a reasonable
5 In light of our decision to sustain the charge of negligent performance of duties, we
need not address the agency’s arguments on review regarding the charge of failure to
follow applicable rules, laws, regulations, or policies. As explained below, the penalty
of demotion can be sustained on the negligence charge alone.
13
penalty. We address those issues here. It is well settled that there is a sufficient
nexus between an employee’s misconduct and the efficiency of the service when,
as in this case, the conduct occurred at work. Parker v. U.S. Postal Service ,
819 F.2d 1113, 1116 (Fed. Cir. 1987); Miles v. Department of the Navy ,
102 M.S.P.R. 316, ¶ 11 (2006). Therefore, we find that disciplining the appellant
for his misconduct promotes the efficiency of the service.
The agency’s penalty is appropriate.
The Board will review an agency-imposed penalty only to determine if the
agency considered all the relevant factors and exercised management discretion
within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 305–06 (listing
twelve factors relevant to the reasonableness of an agency’s chosen penalty). The
Board will give due weight to the agency’s primary discretion in matters of
employee discipline and efficiency, recognizing that the Board’s function is not
to displace management responsibility but to assure that managerial judgment has
been properly exercised. Id. at 302. When the Board sustains fewer than all of
the agency’s charges,6 and the agency either indicates that it would have imposed
the same penalty based on the sustained charges, or does not indicate to the
contrary, the Board’s role is not to independently determine the penalty, but to
decide whether the agency’s choice of penalty is appropriate. Negron v.
Department of Justice , 95 M.S.P.R. 561, ¶ 32 (2004) (citing Lachance v. Devall ,
178 F.3d 1246, 1258-59 (Fed. Cir. 1999)); see Blank v. Department of the Army ,
85 M.S.P.R. 443, ¶ 9 (2000) (explaining that when not all of the agency’s charges
are sustained and the agency has not indicated it desires a lesser penalty under
this eventuality, the Board may presume that the agency desires the maximum
reasonable penalty and must examine whether the agency-imposed penalty is
within the maximum limits of reasonableness), aff’d, 247 F.3d 1225 (Fed. Cir.
6 As noted above, we are assuming for purposes of our penalty analysis that the agency
proved only the charge of careless or negligent performance of duties. See supra n. 6.
Therefore, we are applying the legal standard for cases is which the Board sustains
fewer than all of the agency’s charges.
14
2001). Our review of the record reveals no indication that the agency desires a
lesser penalty if not all of the charges are sustained. We must therefore
determine whether the penalty of demotion is within the maximum limits of
reasonableness.
The seriousness of the appellant’s offense is always one of the most
important factors considered by the Board in assessing the reasonableness of an
agency’s penalty determination. Rosenberg v. Department of Transportation ,
105 M.S.P.R. 130, ¶ 30 (2007). Here, as discussed in the decision letter and the
Douglas factors memorandum, the appellant’s failure to arrest the GPO Employee
for the possession of a loaded firearm unlicensed in D.C., and his decision to give
that loaded firearm back, created a potentially very dangerous situation for GPO
employees and the public. IAF, Tab 1 at 7-8, Tab 18 at 63-66. His failure to
make an arrest was contrary to the agency’s policy in August 2020 to make an
arrest for all felonies—a policy which the deciding official testified was well
known to the appellant—and contrary to training all GPO officers receive on how
to handle such situations. IAF, Tab 37-1, HR (Jones 1) at 29:15-31:30. Further,
the appellant’s decision to return the GPO Employee’s loaded firearm is
confounding given that he testified there was a location in the GPO facility where
officers are able to safely handle weapons and ammunition. IAF, Tab 37-4, HR
(Jones 4) at 17:00-18:45.
In assessing whether a two-step demotion is a reasonable penalty for the
sustained charge, we have also considered the appellant’s past disciplinary
record, his past work record, his length of service, and the agency’s table of
penalties. As mitigating factors, we acknowledge that the appellant has a good
performance record and has not been subject to any prior disciplinary action apart
from a verbal warning in February 2020 for failure to follow supervisory
instructions. IAF, Tab 1 at 8, Tab 18 at 64, Tab 17 at 17. However, the
appellant’s negligence here in failing to arrest the GPO Employee and in
returning the loaded firearm was unmistakably connected to his duties as a law
15
enforcement officer and supervisor. As mentioned above, agencies are entitled to
hold both law enforcement officers and supervisors to a higher standard of
conduct. See, e.g., Cantu v. Department of the Treasury , 88 M.S.P.R. 253, ¶ 8
(2001) (finding that a very high standard of conduct and degree of trust were
required of an appellant who held a supervisory position with law enforcement
duties). The deciding official testified that he lost confidence in the appellant and
how he would act when confronted with a similar situation in the future, and that
he believed that a two-step demotion was appropriate because he also lost
confidence in the appellant’s ability to correctly train other officers. IAF,
Tab 37-2, HR (Jones 2) at 30:30, 32:55. The Board has held that loss of trust is a
significant aggravating factor. See, e.g., Hernandez v. Department of Agriculture ,
83 M.S.P.R. 371, ¶ 9 (1999).
Based on the specific facts of this case, we find that the agency’s chosen
penalty is within the parameters of reasonableness.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
16
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
17
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
18
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
19
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C. | Jones_Aaron_L_DC-0752-21-0345-I-1_Final_Order.pdf | 2024-09-04 | AARON L. JONES v. GOVERNMENT PUBLISHING OFFICE, MSPB Docket No. DC-0752-21-0345-I-1, September 4, 2024 | DC-0752-21-0345-I-1 | NP |
581 | https://www.mspb.gov/decisions/nonprecedential/Hogan_Luis_O_NY-0831-20-0046-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS ORLANDO HOGAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0831-20-0046-I-1
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Luis Orlando Hogan , Brooklyn, New York, pro se.
Jane Bancroft and Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) finding
that he was ineligible for a Federal Employees’ Retirement System annuity.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
On petition for review, the appellant argues that the agency should be
obligated to produce definitive proof that he actually received the deduction
refund checks, the administrative judge failed to consider whether the
authorization was fraudulent, the bank book he produced corroborates his
assertion that he did not deposit a check in the amount of the refund, and there is
no evidence that the checks were sent out and received by him. Petition for
Review File, Tab 10 at 5-8.
As the administrative judge correctly concluded, OPM is not required to
produce definitive proof of an appellant’s actual receipt of payment, such as a
cancelled Treasury check, when its ability to produce such evidence is impaired
by an appellant’s lengthy delay in raising his claim of nonpayment. Sosa v.
Office of Personnel Management , 76 M.S.P.R. 683, 686 (1997) ; DeLeon v. Office
of Personnel Management , 49 M.S.P.R. 369, 373 (1991). In such circumstances,
the Board has found that OPM’s record of an appellant’s application for a refund,
combined with records reflecting and that it authorized payment, is sufficient to
establish that the appellant received the refund. DeLeon, 49 M.S.P.R. at 372-73;
Rint v. Office of Personnel Management , 48 M.S.P.R. 69, 72, aff’d per curiam ,
950 F.2d 731 (Fed. Cir. 1991) (Table). Such records give rise to an inference that2
a refund was made accordingly. See Danganan v. Office of Personnel
Management, 55 M.S.P.R. 265, 269 (1992) (finding an Individual Retirement
Record reflecting the amount of the refund payment was persuasive evidence that
the payment was made), aff’d per curiam , 19 F.3d 40 (1994) (Table).
Nevertheless, the Board has also held that if an appellant can show that he
placed OPM on notice that he did not receive the requested refund within a period
of time such that OPM could have ascertained whether the check it mailed was
negotiated, he may be able to carry his burden to establish that the refund was not
paid. See Manoharan v. Office of Personnel Management , 103 M.S.P.R. 159,
¶¶ 16-18 (2006) (distinguishing DeLeon, Rint, and Sosa because the appellants in
those appeals waited between 22 and 32 years before bringing their alleged
nonreceipt of funds to OPM’s attention, while the appellant in Manoharan waited
less than 4 months). There is nothing in the record indicating that the appellant
advised OPM that he had not received the requested refund at any point prior to
filing his October 23, 2019 application for a retirement annuity, which was more
than 27 years after the second refund was authorized. Regarding the appellant’s
assertion that the bank account book he provided does not reflect a deposit entry
equaling the contribution refund amount, as the administrative judge correctly
noted, that information, alone, is insufficient to establish that the appellant did
not receive the refund checks. Initial Appeal File (IAF), Tab 39, Initial Decision
(ID) at 4. The provided bank records are only for one account, with one bank,
covering the period from March 1992 through January 1994. IAF, Tab 33 at 4,
8-10. The fact that this limited set of account records does not reflect a deposit
does not mean that the refund was not in fact received and deposited into another
account, with another bank, or that the check was not negotiated through other
means.
Regarding the appellant’s claim that the authorization may have been
fraudulent, as the administrative judge observed, the appellant acknowledged that
the addresses identified on the two refund applications were his addresses of3
record at the time, and that the signatures on each of the forms are in his own
handwriting. ID at 3; IAF, Tab 10 at 15, 17. Based on the above, we conclude
that the appellant’s October 23, 2019 retirement annuity application and his
subsequent assertion for the first time that he did not receive the check are
insufficient to establish that he did not receive a refund of his retirement
contributions. See Sosa, 76 M.S.P.R. at 685; Rint, 48 M.S.P.R. at 72.
Consequently, we find no error in the administrative judge’s conclusion that the
appellant failed to establish his entitlement to a deferred retirement annuity,
based on the determination that he received a refund of his retirement deductions.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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 link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Hogan_Luis_O_NY-0831-20-0046-I-1_Final_Order.pdf | 2024-09-04 | LUIS ORLANDO HOGAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0831-20-0046-I-1, September 4, 2024 | NY-0831-20-0046-I-1 | NP |
582 | https://www.mspb.gov/decisions/nonprecedential/Spence_JenniferSF-844E-20-0444-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER SPENCE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-20-0444-I-1
DATE: September 4, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Spence , Las Vegas, Nevada, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her application for a Federal Employees’ Retirement System
(FERS) disability retirement annuity. Generally, we grant petitions such as this
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant alleges that, after the initial decision was issued,
the Social Security Administration (SSA) granted her disability insurance
benefits. Petition for Review (PFR) File, Tab 1 at 4. She does not otherwise
claim that the administrative judge erred in her findings. Id. The appellant also
submitted the SSA determination, and the medical documentation underlying the
determination, which pre-dates the initial decision. PFR File, Tabs 5-10.
Considering the evidence submitted by the appellant for the first time on review,
we still find that the appellant did not prove she is entitled to FERS disability
retirement benefits.2
2 Because the appellant did not request a hearing, we have considered the relevant
medical evidence that she has submitted for the first time on review without remanding
the appeal. See Jones v. Department of the Interior , 97 M.S.P.R. 282, ¶ 7 (2004)
(explaining that if an administrative judge did not hold a hearing, the Board is free to
substitute its factual findings for those of the administrative judge) (citing Haebe v.
Department of Justice , 288 F.3d 1288, 1302 (Fed. Cir. 2002)).2
The Board has consistently held that an award of SSA benefits is relevant,
but not dispositive, in a FERS disability retirement appeal if the conditions
underlying both applications are the same. Confer v. Office of Personnel
Management, 111 M.S.P.R. 419, ¶ 6 (2009). Generally, the Board will not
consider evidence relating to a different or additional medical condition that was
not the subject of the appellant’s application to OPM. Rozar v. Office of
Personnel Management , 61 M.S.P.R. 136, 140 (1994). However, the Board has
held that an exception to this general rule exists if there is sufficient evidence that
the newly raised condition was related to the condition on which the application
was based and, thus, is not a totally different or additional condition. Gardner v.
Office of Personnel Management , 91 M.S.P.R. 391, ¶ 11 (2002) (citing Chappell
v. Office of Personnel Management, 79 M.S.P.R. 302, ¶ 6 (1998)). In such cases,
the Board will consider the causal or exacerbating effect of various medical
conditions on each other. Id.; Chappell, 79 M.S.P.R. 302, ¶ 11.
Here, the appellant applied for FERS disability retirement based on the
wrist injury and low back sprain that resulted from her March 2019 tripping
incident at work, specifically, a “lumbar strain” and “right wrist contusion.”
Initial Appeal File (IAF), Tab 8 at 21, 53, Tab 13 at 5. Meanwhile, the SSA
decision was based on her conditions of temporomandibular joint, headaches,
obesity, and degenerative disc disease of the lumbar spine. PFR File, Tab 5
at 42-46. There is nothing in the SSA decision that suggests that it based its
determination of disability on a wrist condition. Id. Therefore, the SSA decision
provides no basis to disturb the administrative judge’s finding that the appellant
failed to establish that she was entitled to a FERS disability retirement annuity as
a result of her wrist condition. IAF, Tab 30, Initial Decision at 9-12 & n.3.
As to the appellant’s condition of back sprain or strain, this condition is not
directly referenced in the SSA decision granting benefits. PFR File, Tab 5
at 39-47. Instead, the SSA concluded that the appellant had a disabling back
condition, based, in part, on an August 2020 x-ray of her lumbar spine that3
resulted in a finding of sacralization, facet arthropathy, and degenerative disc
disease. Id. at 43-44 & n.5; IAF, Tab 15 at 7. However, none of the evidence in
the record below or produced on review suggests that the appellant’s
sacralization, facet arthropathy, or degenerative disc disease is causally related to
her back strain, which was the basis of her application to OPM. Nor has the
appellant alleged the conditions are related. Furthermore, to the extent that the
appellant’s back sprain worsened and developed into degenerative disc disease,
such evidence does not prove that she is entitled to FERS, because the evidence
does not reflect that the condition was disabling at the time she was employed by
the agency. See Thorne v. Office of Personnel Management , 105 M.S.P.R. 171,
¶ 5 (2007) (setting forth the elements necessary to prove entitlement to disability
retirement annuity, including, as relevant here, establishing that an appellant
became disabled while employed in a position subject to FERS). Accordingly,
neither the SSA decision, nor the underlying medical documentation, warrant a
different outcome.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 5
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 6
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Spence_JenniferSF-844E-20-0444-I-1_Final_Order.pdf | 2024-09-04 | JENNIFER SPENCE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-20-0444-I-1, September 4, 2024 | SF-844E-20-0444-I-1 | NP |
583 | https://www.mspb.gov/decisions/nonprecedential/Holloran_Kelli_K_DC-3443-23-0359-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELLI KAYE HOLLORAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-3443-23-0359-I-1
DATE: September 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kelli Kaye Holloran , Florence, Arizona, pro se.
Keta J. Barnes , Esquire, Durham, North Carolina, for the agency.
Mark Goldner , Esquire, Chapel Hill, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for lack of jurisdiction. On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
argues that the Board has jurisdiction over the pending termination of her
appointment, which was represented to her as being permanent rather than term
limited. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
¶2The administrative judge correctly denied jurisdiction over the appellant’s
whistleblower reprisal claim as an individual right of action (IRA) appeal based
on the appellant’s failure to exhaust administrative remedies. We supplement the
administrative judge’s rationale for doing so as follows.
¶3The Board’s jurisdiction over an IRA appeal is limited to those issues that
have been previously raised with the Office of Special Counsel (OSC). Chambers
v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. An appellant must
prove exhaustion with OSC by preponderant evidence, not just present
nonfrivolous allegations of exhaustion. Id., ¶ 11. The appellant’s initial appeal
form and subsequent statements indicate that she mistakenly referred to her
Department of Health and Human Services Office of Inspector General (HHS
OIG) complaint as her OSC complaint. First, she uploaded the March 10, 2023
receipt of her HHS OIG complaint into the administrative record with her initial2
appeal under the label “WhistleblowerRequest, OSC Complaint.” Initial Appeal
File (IAF), Tab 1 at 6, 12. Second, the date on which the appellant claimed to
have made her OSC complaint, March 10, 2023, is the date of her complaint
receipt from HHS OIG. Id. at 4, 12. Third, this date preceded the date in late
March 2023 on which she was informed that her position had been erroneously
coded as permanent. Id. at 5, 11. The appellant thus could not have filed an OSC
complaint on March 10, 2023, to allege whistleblower reprisal based on a
notification she had not yet received. Finally, the appellant described her HHS
OIG complaint and purported OSC complaint identically: as reporting
“fraudulent” information uploaded into the U.S. Court of Appeals for Veterans
Claims website. IAF, Tab 1 at 5, Tab 12 at 4-5. She did not assert at any point
that her OSC complaint, distinct from her HHS OIG complaint, alleged
whistleblower reprisal. The record thus indicates that the appellant mistakenly
referred to her HHS OIG complaint as her OSC complaint, did not file a
whistleblower reprisal complaint with OSC, and thus did not exhaust
administrative remedies, as required to pursue a whistleblower reprisal claim in
an IRA appeal.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 The appellant’s regulation review request, Holloran v. Office of Personnel
Management, MSPB Docket No. CB-1205-23-0010-U-1, and her petition for review of
the January 9, 2024 initial decision in Holloran v. Department of Veterans Affairs ,
MSPB Docket No. DE-3443-24-0037-I-1 will be addressed in separate decisions.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation4
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.4 The court of appeals must receive your
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Holloran_Kelli_K_DC-3443-23-0359-I-1_Final_Order.pdf | 2024-09-03 | KELLI KAYE HOLLORAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-3443-23-0359-I-1, September 3, 2024 | DC-3443-23-0359-I-1 | NP |
584 | https://www.mspb.gov/decisions/nonprecedential/Ortiz-Rodriguez_Luis_A_AT-0714-20-0338-I-7_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS A. ORTIZ-RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0338-I-7
DATE: September 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mount Pleasant, South Carolina, for the appellant.
RaTanya Fernandez , Esquire, St. Petersburg, Florida, for the agency.
Luis Ortiz-Cruz , Esquire, Orlando, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision in this
appeal. At the time he filed his petition for review, the appellant had another
appeal pending before the regional office, Ortiz-Rodriguez v. Department of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Veterans Affairs , MSPB Docket No. AT-0714-23-0296-I-1. The agency filed a
motion to dismiss the 0296 appeal based, in part, on the appellant’s pending
petition for review in the instant matter. Ortiz-Rodriguez v. Department of
Veterans Affairs , MSPB Docket No. AT-0714-23-0296-I-1, Initial Appeal File
(0296 IAF), Tab 17 at 4. The appellant filed a response stating, “appellant hereby
withdraws all related petitions for review.” 0296 IAF, Tab 18 at 5. He further
stated that he filed the petitions for review due to a purported “mistake in
processing” and that the new appeal in the 0296 matter “resolves all missteps in
the processing” of the prior appeals. Id. The pleading was signed by the
appellant’s designated representative. Id. at 6. The agency then filed a motion to
dismiss the instant petition for review based on the appellant’s statement of
withdrawal. Ortiz-Rodriguez v. Department of Veterans Affairs , MSPB Docket
No. AT-0714-20-0338-I-7, Petition for Review (I-7 PFR) File, Tab 4 at 4-5. The
appellant did not file a response in opposition.
¶2Finding that withdrawal is appropriate under these circumstances, we
dismiss the petition for review as withdrawn with prejudice to refiling (i.e., the
parties normally may not refile this appeal). Alternatively, we find that the
petition for review is untimely filed by 119 days without good cause shown.2 The
initial decision of the administrative judge is final. Title 5 of the Code of Federal
Regulations, section 1201.113 (5 C.F.R. § 1201.113).
2 The initial decision in this appeal became final on December 12, 2022. Ortiz-
Rodriguez v. Department of Veterans Affairs , MSPB Docket No. AT-0714-20-0338-I-7,
Appeal File, Tab 26, Initial Decision at 4. The appellant filed a petition for review
119 days later, on April 10, 2023. I-7 PFR File, Tab 1. In a letter acknowledging the
appellant’s petition for review, the Office of the Clerk of the Board informed the
appellant that he must establish good cause for his delayed filing. I-7 PFR File, Tab 2
at 2. The appellant did not file a response.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a courtappointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Ortiz-Rodriguez_Luis_A_AT-0714-20-0338-I-7_Final_Order.pdf | 2024-09-03 | null | AT-0714-20-0338-I-7 | NP |
585 | https://www.mspb.gov/decisions/nonprecedential/Ortiz-Rodriguez_Luis_A_AT-0714-20-0338-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS A. ORTIZ-RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0338-C-1
DATE: September 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mount Pleasant, South Carolina, for the appellant.
RaTanya Fernandez , Esquire, St. Peterburg, Florida, for the agency.
Luis Ortiz-Cruz , Esquire, Orlando, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the compliance initial
decision in this appeal. At the time he filed his petition for review, the appellant
had another appeal pending before the regional office, Ortiz-Rodriguez v.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
Department of Veterans Affairs , MSPB Docket No. AT-0714-23-0296-I-1. The
agency filed a motion to dismiss the 0296 appeal based, in part, on the appellant’s
pending petition for review in the instant matter. Ortiz-Rodriguez v. Department
of Veterans Affairs , MSPB Docket No. AT-0714-23-0296-I-1, Initial Appeal File
(0296 IAF), Tab 17 at 4. The appellant filed a response stating, “appellant hereby
withdraws all related petitions for review.” 0296 IAF, Tab 18 at 5. He further
stated that he filed the petitions for review due to a purported “mistake in
processing” and that the new appeal in the 0296 matter “resolves all missteps in
the processing” of the prior appeals. Id. The pleading was signed by the
appellant’s designated representative. Id. at 6. The agency then filed a motion to
dismiss the instant petition for review based on the appellant’s statement of
withdrawal. Ortiz-Rodriguez v. Department of Veterans Affairs , MSPB Docket
No. AT-0714-20-0338-C-1, Compliance Petition for Review File, Tab 4 at 4-5.
The appellant did not file a response in opposition.
¶2Finding that withdrawal is appropriate under these circumstances, we
dismiss the petition for review as withdrawn with prejudice to refiling (i.e., the
parties normally may not refile this appeal). The initial decision of the
administrative judge is final. Title 5 of the Code of Federal Regulations, section
1201.113 (5 C.F.R. § 1201.113).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a courtappointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Ortiz-Rodriguez_Luis_A_AT-0714-20-0338-C-1_Final_Order.pdf | 2024-09-03 | null | AT-0714-20-0338-C-1 | NP |
586 | https://www.mspb.gov/decisions/nonprecedential/Ortiz-Rodriguez_Luis_A_AT-0714-20-0338-I-6_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS A. ORTIZ-RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-20-0338-I-6
DATE: September 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mount Pleasant, South Carolina, for the appellant.
Luis Ortiz-Cruz , Esquire, Orlando, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision in this
appeal. At the time he filed his petition for review, the appellant had another
appeal pending before the regional office, Ortiz-Rodriguez v. Department of
Veterans Affairs , MSPB Docket No. AT-0714-23-0296-I-1. The agency filed a
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
motion to dismiss the 0296 appeal based, in part, on the appellant’s pending
petition for review in the instant matter. Ortiz-Rodriguez v. Department of
Veterans Affairs , MSPB Docket No. AT-0714-23-0296-I-1, Initial Appeal File
(0296 IAF), Tab 17 at 4. The appellant filed a response stating, “appellant hereby
withdraws all related petitions for review.” 0296 IAF, Tab 18 at 5. He further
stated that he filed the petitions for review due to a purported “mistake in
processing” and that the new appeal in the 0296 matter “resolves all missteps in
the processing” of the prior appeals. Id. The pleading was signed by the
appellant’s designated representative. Id. at 6. The agency then filed a motion to
dismiss the instant petition for review based on the appellant’s statement of
withdrawal. Ortiz-Rodriguez v. Department of Veterans Affairs , MSPB Docket
No. AT-0714-20-0338-I-6, Petition for Review (I-6 PFR) File, Tab 4 at 4-5. The
appellant did not file a response in opposition.
¶2Finding that withdrawal is appropriate under these circumstances, we
dismiss the petition for review as withdrawn with prejudice to refiling (i.e., the
parties normally may not refile this appeal). Alternatively, we find that the
petition for review is untimely filed by 398 days without good cause shown.2 The
initial decision of the administrative judge is final. Title 5 of the Code of Federal
Regulations, section 1201.113 (5 C.F.R. § 1201.113).
2 The initial decision in this matter became final on March 8, 2022. Ortiz-Rodriguez v.
Department of Veterans Affairs , MSPB Docket No. AT-0714-20-0338-I-6, Appeal File,
Tab 6, Initial Decision at 3. The appellant filed his petition for review 398 days later,
on April 10, 2023. I-6 PFR File, Tab 1. In a letter acknowledging the petition for
review, the Office of the Clerk of the Board informed the appellant that he must
establish good cause for his delayed filing. I -6 PFR File, Tab 2 at 2. The appellant did
not file a response.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter. 3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a courtappointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Ortiz-Rodriguez_Luis_A_AT-0714-20-0338-I-6_Final_Order.pdf | 2024-09-03 | null | AT-0714-20-0338-I-6 | NP |
587 | https://www.mspb.gov/decisions/nonprecedential/Ortiz-Rodriguez_Luis_A_AT-0714-23-0296-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS A. ORTIZ-RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0714-23-0296-I-1
DATE: September 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mount Pleasant, South Carolina, for the appellant.
RaTanya Fernandez , Esquire, St. Petersburg, Florida, for the agency.
Luis Ortiz-Cruz , Esquire, Orlando, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed his removal from Federal service pursuant to 38 U.S.C. § 714.
Generally, we grant petitions such as this one only in the following
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2On review, the appellant reiterates many of the same arguments that he
raised before the administrative judge, including that the agency applied the
wrong standard in reviewing the proposed removal, the agency failed to prove its
specifications and a nexus between the appellant’s misconduct and the efficiency
of the service, the agency failed to consider the factors enumerated in Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 306 (1981), and the penalty of removal
is unreasonable. Petition for Review (PFR) File, Tab 2 at 1-18. The appellant
also argues that he proved his whistleblower reprisal affirmative defense and that
the agency violated his due process rights when the deciding official considered
ex parte information without giving him an opportunity to respond. Id. at 16-21.
¶3The appellant did not argue before the administrative judge that the
deciding official violated his due process rights by considering ex parte
information, and we therefore decline to consider his argument on review. Initial
Appeal File (IAF), Tab 1 at 11-14, Tab 27 at 5-7; see Clay v. Department of the
Army, 123 M.S.P.R. 245, ¶ 6 (2016) (explaining that the Board generally will not
consider an argument raised for the first time on review absent a showing that it is2
based on new and material evidence not previously available despite the party’s
due diligence). The appellant’s arguments that the agency applied the wrong
standard to the proposed removal and that it did not consider the Douglas factors
are without merit and we agree with the administrative judge’s findings on these
points. IAF, Tab 33, Initial Decision (ID) at 6, 28. The appellant’s remaining
arguments constitute mere disagreement with the administrative judge’s factual
findings and credibility determinations, and they are insufficient to warrant a
different outcome. We find that the administrative judge considered the evidence
as a whole, drew appropriate references, and made reasoned conclusions on issues
of credibility, and we therefore decline to disturb her findings in the initial
decision.2 See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987). Considering the seriousness of the sustained charges against the
appellant, we agree with the agency and the administrative judge that the penalty
of removal is reasonable. ID at 28. Accordingly, we deny the appellant’s petition
for review and affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 To the extent the appellant is challenging the administrative judge’s findings in his
other appeals, the Board will issue separate decisions in those matters. PFR File, Tab 2
at 6-8.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully 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. The4
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file5
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Ortiz-Rodriguez_Luis_A_AT-0714-23-0296-I-1_Final_Order.pdf | 2024-09-03 | null | AT-0714-23-0296-I-1 | NP |
588 | https://www.mspb.gov/decisions/nonprecedential/Holloran_Kelli_K_DE-3443-24-0037-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELLI KAYE HOLLORAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-3443-24-0037-I-1
DATE: September 3, 2024
THIS ORDER IS NONPRECEDENTIAL1
Kelli Kaye Holloran , Florence, Arizona, pro se.
Jeffrey Dean Stacey , Lakewood, Colorado, for the agency.
Mark Goldner , Esquire, Chapel Hill, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her appeal without prejudice for administrative efficiency. For the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Denver Field Office
for further adjudication in accordance with this Remand Order .
BACKGROUND
¶2In the spring of 2021, the appellant, who was already employed by the
agency, applied to a vacancy announcement for an agency Program Specialist
position. Holloran v. Department of Veterans Affairs , MSPB Docket
No. DC-3443-23-0359-I-1, Initial Appeal File (0359 IAF), Tab 3 at 4, 11, Tab 14
at 8. The announcement was for a term appointment not to exceed 2 years.
0359 IAF, Tab 14 at 8; USAJOBS, https://www.usajobs.gov/Job/599568000 (last
visited Aug. 27, 2024). The appellant was offered the position, which the offer
letters and a human resources specialist’s email referred to as a term appointment.
0359 IAF, Tab 8 at 15-16, Tab 9 at 23-24. The appellant accepted the offer and
was reassigned to the position on August 15, 2021. 0359 IAF, Tab 1 at 7-10.
Contrary to the earlier indicia of the position’s term status, the letter confirming
the appellant’s acceptance of the position and her Standard Form (SF) 50s
indicated that her appointment was permanent. 0359 IAF, Tab 1 at 8-10, Tab 3
at 14-19.
¶3In March 2023, the agency informed the appellant that her appointment had
been erroneously coded as permanent, and that her term appointment would end
on August 14, 2023. 0359 IAF , Tab 1 at 5, 11. The appellant filed an appeal of
the agency’s notification to the Board that same month. 0359 IAF , Tab 1.
During the appeal she argued, among other things, that she confirmed with a
human resources official that the appointment was permanent prior to accepting
the position, which, when added to the other indicia of the appointment’s
permanent status, showed that the agency’s March 2023 notification was a
mistake. Id. at 5.2
¶4In May 2023, the administrative judge informed the appellant that her
pending August 2023 separation had not yet been effected and ordered her to
show cause why her appeal should not be dismissed for lack of jurisdiction on
that basis. 0359 IAF, Tab 13. After receiving the appellant’s response, the
administrative judge dismissed the appeal in a May 2023 initial decision for lack
of jurisdiction, finding that, because the appellant had not yet been separated, her
appeal had been prematurely filed. Holloran v. Department of Veterans Affairs ,
MSPB Docket No. DC-3443-23-0359-I-1, Initial Decision (May 15, 2023);
0359 IAF, Tab 17. The appellant petitioned the Board for review in June 2023.
Holloran v. Department of Veterans Affairs , MSPB Docket No. DC-3443-23-
0359-I-1, Petition for Review File, Tab 1.
¶5In October 2023, the appellant filed the present appeal of her separation,
which she claimed had been effected in August 2023. Holloran v. Department of
Veterans Affairs , MSPB Docket No. DE-3443-24-0037-I-1, Initial Appeal File
(0037 IAF), Tab 1. Without holding the appellant’s requested hearing, the
administrative judge dismissed the appeal without prejudice for administrative
efficiency. 0037 IAF, Tab 11, Initial Decision. The administrative judge did so
having determined that the appellant’s two appeals involved essentially identical
issues and therefore needed not be litigated simultaneously. Id. at 2-3. The
appellant filed a petition for review, to which the agency did not respond.
Holloran v. Department of Veterans Affairs , MSPB Docket No. DE-3443-24-
0037-I-1, Petition for Review File, Tab 1.
ANALYSIS
The administrative judge shall afford the appellant further opportunity to
establish chapter 75 jurisdiction over her appeal after providing her explicit
information regarding her jurisdictional burden.
¶6The Board affirmed the initial decision in the appellant’s March 2023
appeal of her then-pending separation without determining whether she
nonfrivolously alleged chapter 75 jurisdiction. Holloran v. Department of3
Veterans Affairs , MSPB Docket No. DC-3443-23-0359-I-1, Final Order (Sept. 3,
2024). The appellant’s separation had not yet been effected during the
proceedings before the administrative judge or by the close of the record on
petition for review in that earlier appeal, and we find that whether the Board has
chapter 75 jurisdiction over the appellant’s separation is appropriately addressed
in the present appeal. See Nunley v. U.S. Postal Service , 52 M.S.P.R. 442, 446
(1992) (stating that the Board lacks jurisdiction over an agency’s action which
has not yet occurred).
¶7An appellant must, however, receive explicit information on what is
required to establish an appealable jurisdictional issue. Burgess v. Merit Systems
Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985); Bent v. Department of
State, 123 M.S.P.R. 304, ¶ 11 (2016). The appellant’s assertions below indicate
that she appealed her separation under 5 U.S.C. chapter 75. 0037 IAF, Tab 7 at 2,
Tab 8 at 4-5, Tab 10 at 4-5, 12. Understanding this, the administrative judge
informed the appellant that whether the Board had jurisdiction over her appeal
depended on whether she was properly serving under a term appointment.
0037 IAF, Tab 9 at 2. The administrative judge did not, however, give the
appellant the opportunity to establish chapter 75 jurisdiction after informing her
that this was the central issue in her case, no less provide her explicit information
regarding how she may do so.2 0037 IAF, Tab 9.
¶8In Edwards v. Department of the Air Force , 120 M.S.P.R. 307, ¶¶ 2, 9-11
(2013), overruled on other grounds by Requena v. Department of Homeland
2 An administrative judge’s failure to provide an appellant proper jurisdictional notice
can be cured if the agency’s pleadings contain the notice or the initial decision puts the
appellant on notice of what she must do to establish jurisdiction, affording her the
opportunity to meet her jurisdictional burden on review. Easterling v. U.S. Postal
Service, 110 M.S.P.R. 41, ¶ 11 (2008). Here, neither the agency’s filings nor the initial
decision apprised the appellant of her jurisdictional burden in a chapter 75 appeal.
Further, the administrative judge’s earlier notices, which informed the appellant of
other statutory bases for jurisdiction and that her claim regarding her tenure change
appeared to be barred by collateral estoppel, could not have assisted the appellant in
establishing chapter 75 jurisdiction over her appeal. 0037 IAF, Tab 2 at 2-4 & nn.1-4,
Tab 7 at 2-3. 4
Security, 2022 MSPB 39, ¶ 14, a case presenting a similar jurisdictional issue to
that presented here, the Board considered the record and the appellant’s assertions
before the administrative judge to conclude that, despite his employing agency’s
representations to the contrary, the appellant nonfrivolously alleged that he was
not serving in a term position at the time of his separation. On remand, the
administrative judge shall advise the appellant of her jurisdictional burden
consistent with cases such as Edwards,3 and afford her further opportunity to
nonfrivolously allege jurisdiction under chapter 75.
If the appellant establishes chapter 75 jurisdiction over her appeal, the
administrative judge shall determine whether the appeal was timely filed or, if
not, whether good cause existed for the appellant’s filing delay.
¶9An appeal must be filed with the Board no later than 30 days after the
effective date of the action being appealed, or 30 days after the date of the
appellant’s receipt of the agency’s decision, whichever is later . 5 C.F.R.
§ 1201.22(b)(1). The Board will dismiss an appeal that is untimely filed unless
the appellant shows good cause for the delay. 5 C.F.R. § 1201.22(c). We
recognize that the appellant filed the present appeal over 2 months after her
separation, and that the timeliness of the appeal is thus at issue. Accordingly, on
remand, if the administrative judge finds that the appellant establishes chapter 75
jurisdiction over her appeal, he shall determine whether the appeal was timely
filed or, if not, whether good cause existed for the appellant’s filing delay. If he
reaches the timeliness issue, the administrative judge should advise the parties of
the issue and afford them the opportunity to submit evidence and argument on the
matter.4
3 The Board in Edwards, 120 M.S.P.R. 307, ¶ 7, noted, among other things, that though
the expiration of a term appointment is not appealable in a chapter 75 appeal, the Board
looks to the totality of the circumstances to determine the nature of an employee’s
appointment; an employee’s SF–50, although the customary document used to
memorialize a personnel action, is not controlling. The Board further noted that
whether an employee meets the definition of “employee” under 5 U.S.C. § 7511 is
irrelevant to whether an employee can appeal the expiration of a term position. Id.5
The administrative judge shall also address the appellant’s whistleblower reprisal
claim on remand.
¶10Though the appellant made a vague whistleblower reprisal claim in her
initial appeal based on her alleged disclosures of “hacking to the FBI and other
authorities and discovery of extreme fraud in employment,” she confirmed during
a status conference that she was not asserting a whistleblower reprisal claim.
0037 IAF, Tab 1 at 2, Tab 7 at 2. But then, in response to the status conference
summary stating that she was not alleging whistleblower retaliation, the appellant
reasserted whistleblower reprisal. 0037 IAF , Tab 8 at 7. Under these
circumstances, we are unable to discern whether the appellant, who acted pro se
throughout the appeal, intended to abandon her whistleblower reprisal allegation.
See Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 17-18.
¶11Accordingly, if the administrative judge determines on remand that the
Board has jurisdiction over the appellant’s separation under chapter 75 and that
the appeal was timely filed or good cause existed for any filing delay, he should
then provide the appellant the option of having her whistleblower reprisal claim
treated as an affirmative defense. If, however, the administrative judge concludes
that the Board lacks chapter 75 jurisdiction over the appellant’s separation or that
the appeal was untimely filed as a chapter 75 appeal without good cause shown,
he should determine whether the appellant wishes to proceed with her
whistleblower reprisal claim as an individual right of action appeal, and if she
does, advise her accordingly.
4 We observe that, when an agency is required to notify an individual of her Board
appeal rights, but fails to do so—as may be the case here—that failure may constitute
good cause for a filing delay. Arrington v. Department of the Navy , 117 M.S.P.R. 301,
¶ 15 (2012). In such cases, an appellant need not show that she acted diligently in
discovering her Board appeal rights; she need only show that she acted diligently in
pursuing her Board appeal rights once she discovered them. Id. 6
ORDER
¶12For the reasons discussed above, we remand this case to the Denver Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Holloran_Kelli_K_DE-3443-24-0037-I-1_Remand_Order.pdf | 2024-09-03 | KELLI KAYE HOLLORAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-3443-24-0037-I-1, September 3, 2024 | DE-3443-24-0037-I-1 | NP |
589 | https://www.mspb.gov/decisions/nonprecedential/Holloran_Kelli_K_CB-1205-23-0010-U-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KELLI KAYE HOLLORAN,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CB-1205-23-0010-U-1
DATE: September 3, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kelli Holloran , Florence, Arizona, pro se.
Mark Goldner , Esquire, Chapel Hill, North Carolina, for the agency.
Tabitha G. Macko , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The petitioner requests that we review an Office of Personnel Management
(OPM) regulation relating to temporary and term employment, pursuant to our
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
authority under 5 U.S.C. § 1204(f). Holloran v. Office of Personnel Management ,
MSPB Docket No. CB-1205-23-0010-U-1, Request File (RF), Tab 1. For the
reasons discussed below, we DENY the petitioner’s request.
BACKGROUND
¶2On March 23, 2023, the petitioner filed an appeal with the Board, alleging
that she applied to a job offer for a “TERM appointment” but was offered and
accepted a permanent position as a Program Specialist on August 6, 2020;
however, almost 2 years later, the agency notified petitioner that her permanent
appointment was a mistake and amended her appointment to a 2-year term
appointment. Holloran v. Department of Veterans Affairs , MSPB Docket
No. DC-3443-23-0359 -I-1, Initial Appeal File (0359 IAF), Tab 1 at 5; RF, Tab 1
at 6.
¶3In a May 3, 2023 order to show cause, the administrative judge advised the
petitioner it appeared that she had not been subjected to an appealable removal
action and instructed her to show cause as to why her case should not be
dismissed for lack of jurisdiction. 0359 IAF, Tab 13 at 1-2. In her response,
dated May 11, 2023, the petitioner asserted that the Board had original
jurisdiction over her claims pursuant to its authority to review regulations
promulgated by OPM. 0359 IAF, Tab 14 at 4-5. On May 12, 2023, the
administrative judge issued a notice to the appellant advising her that a request
for regulation review must be filed with the Office of the Clerk of the Board,
pursuant to the provisions of 5 C.F.R. §§ 1201.11-1201.14.2 0359 IAF, Tab 15
at 1-2.
2 On May 15, 2023, the administrative judge dismissed the petitioner’s appeal for lack
of jurisdiction. Holloran v. Department of Veterans Affairs , MSPB Docket No. DC-
3443-23-0359-I-1, Initial Decision at 1 (May 15, 2023); 0359 IAF, Tab 17. On June 18,
2023, the petitioner filed a petition for review of the initial decision with the full Board,
which the Board denied. Holloran v. Department of Veterans Affairs , MSPB Docket
No. DC-3443-23-0359-I-1, Final Order (Sept. 3, 2024). 2
¶4On May 12, 2023, the petitioner filed a “Request for Regulation Review.”
RF, Tab 1. In her request she appears to identify 5 C.F.R. § 316.301 as a
regulation implemented in a way that required employees to violate a prohibited
personnel practice. Id. at 6-7. Section 316.301 provides:
(a) An agency may make a term appointment for a period of more
than 1 year but not more than 4 years to positions where the need for
an employee's services is not permanent. Reasons for making a term
appointment include, but are not limited to: project work,
extraordinary workload, scheduled abolishment, reorganization,
contracting out of the function, uncertainty of future funding, or the
need to maintain permanent positions for placement of employees
who would otherwise be displaced from other parts of the
organization. Agencies may extend appointments made for more
than 1 year but less than 4 years up to the 4–year limit in increments
determined by the agency. The vacancy announcement should state
that the agency has the option of extending a term appointment up to
the 4–year limit.
(b) OPM may authorize exceptions beyond the 4–year limit when the
extension is clearly justified and is consistent with applicable
statutory provisions. Requests to make and/or extend appointments
beyond the 4–year limit must be initiated by the employing office
and sent to the appropriate OPM service center.
Id.
¶5In her request for review, the petitioner states that the “workload and lack
of personnel at the Board of Veterans[’] Appeals does not fall under the legal
justification for ‘TERM appointment’ described above, nor for the posting of
many of these positions as term.” RF, Tab 1 at 7. She contends that her position
is “continuous,” suggesting that the need for it is permanent. Id. at 7. She also
quotes a letter from a Veterans Law Judge3 which states that the Board of
Veterans’ Appeals Human Resources division “cannot effectively handle the full
scope of personnel-related actions needed for our 1,250-person organization.” Id.
at 5.
3 The referenced letter is not in the record.3
¶6The petitioner asserts that the agency implemented 5 C.F.R. § 316.301(a)
and “OPM policies” in a manner that violated 5 U.S.C. § 2302(b)(4), engaging in
a prohibited personnel practice by “deceiv[ing] or willfully obstruct[ing] any
person with respect to such person’s right to compete for employment” by
changing her permanent position to a term position. 5 U.S.C. § 2302(b)(4); RF,
Tab 1 at 10. She also claims that the agency violated 5 U.S.C. § 2302(b)(8) and
(b)(9), which prohibit taking a personnel action against an employee in reprisal
for a protected disclosure, or for “the exercise of any appeal, complaint, or
grievance right granted by any law, rule, or regulation,” among other things. RF,
Tab 1 at 10-11. As to relief, the petitioner requests that the Board change her
position to “permanent;” for a review to be conducted to determine whether other
employees have had their permanent positions “revoked;” and for the Board to
determine that the Veterans’ Appeals Board is incorrectly posting positions as
“[t]erm” positions. Id. at 14.
¶7OPM filed a response on July 14, 2023, arguing that the petitioner failed to
properly identify a challenged regulation, because the petitioner stated she
requested the MSPB “determine if any OPM rule is . . . invalid on its face. . . .”
RF, Tab 14 at 6 (quoting RF, Tab 1 at 12) (emphasis added). The agency also
contends that the petitioner does not meet the Board’s prudential criteria for
review, because this issue will be timely reached through normal channels of
appeal; other equivalent remedies are available; the extent of the regulation’s
application is not broad, because the petitioner failed to identify a regulation; and
the strength of the argument against the regulation’s validity is weak. RF, Tab 14
at 8-9.
¶8The Department of Veterans Affairs also filed a response to the petitioner’s
request for regulation review. RF, Tab 12. The agency asserts that the petitioner
failed to properly identify a challenged regulation and did not describe in detail
how regulations were connected to the prohibited personnel practices at issue. Id.
at 5-7. Further, the agency argues that the petitioner did not explain how the4
alleged invalid implementation of a regulation required the commission of a
prohibited personnel practice. Id. at 7-8.
¶9The petitioner filed a reply to the agencies’ responses, detailing her claims.
RF, Tab 18. She alleges she received a tentative offer letter for a term position,
allegedly spoke to a Human Resources employee who told her the position would
be changed to permanent,4 and received a final email confirming her official
selection and acceptance, which referred to her position as permanent.5 Id.
at 5-17. She additionally contends that the Board of Veterans’ Appeals has
violated 5 U.S.C. § 2302(b)(6) by granting a “preference or advantage [to others]
for the purpose of improving or injuring the prospects of any particular person for
employment.” Id. at 17 (citing section 2302(b)(6)).6
ANALYSIS
¶10The Board has original jurisdiction to review rules and regulations
promulgated by OPM. 5 U.S.C. § 1204(f). The Board is authorized to declare an
OPM rule or regulation invalid on its face if the Board determines that the
provision would, if implemented by an agency, on its face, require any employee
to violate a prohibited personnel practice as defined by 5 U.S.C. § 2302(b). See
4 In a previous appeal, the agency also submitted a July 6, 2021 email from Veterans
Affairs personnel to the petitioner, stating that as per their discussion, the petitioner
was being considered for a term position, and provided additional information about
term appointments. 0359 IAF, Tab 9 at 23.
5 The petitioner first received an email stating that she had been selected for and
accepted a position as an Attorney Advisor, and then received a “corrected” letter
stating that she had been selected for and accepted a position as a Program Specialist.
RF, Tab 6 at 9-13.
6 The petitioner has also, throughout her filings, alleged that she has been pursued by
“an extremely wealthy stalker,” that her cell phone has been hacked, and that she
believes that the incident regarding her job status continues “[the stalker’s] harassment
and abuse of me which has persisted since 2011.” RF, Tab 13 at 3; see also RF, Tab 16
at 6-15. The petitioner further argues that the Department of Veterans Affairs attorney
assigned to this matter is involved with agency retaliation against her because the
attorney was also assigned to another case involving the petitioner and because the
interrogatories in that case were “not relevant.” RF, Tab 7 at 4-6, Tab 16 at 4-6. These
allegations do not state any claim over which the Board has jurisdiction. 5
5 U.S.C. § 1204(f)(2)(A). Similarly, the Board has authority to determine that an
OPM regulation has been invalidly implemented by an agency, if the Board
determines that the provision, as implemented, has required any employee to
violate a prohibited personnel practice. 5 U.S.C. § 1204(f)(2)(B).
¶11The Board’s regulations direct the individual requesting review to provide
the following information: a citation identifying the challenged regulation; a
statement (along with any relevant documents) describing in detail the reasons
why the regulation would require, or its implementation requires, an employee to
commit a prohibited personnel practice; specific identification of the prohibited
personnel practice at issue; and a description of the action the requester desires
the Board to take. 5 C.F.R. § 1203.11(b); see Roesel v. Office of Personnel
Management, 119 M.S.P.R. 15, ¶ 7 (2012); Di Jorio v. Office of Personnel
Management, 54 M.S.P.R. 498, 500 (1992). This information is required to state
a case within the Board’s jurisdiction. 5 C.F.R. § 1203.11(b)(1).
¶12Here, the petitioner identifies 5 C.F.R. § 316.301, regarding the
appointment of term employees, as a regulation at issue. Under the most
favorable reading of her argument, she appears to make two allegations regarding
the regulation’s purportedly invalid implementation: (1) that the Board of
Veterans’ Appeals is appointing “term” employees when the employees should be
appointed in a “permanent” status; and (2) that the Board of Veterans’ Appeals is
appointing “permanent” employees and then revoking their permanent status,
re-appointing them as “term” employees. RF, Tab 1 at 7, 13.7
7 The petitioner also cites to an OPM Delegated Examining Operations (DEO)
Handbook and additional regulations, including 5 C.F.R. § 315.401 (Reinstatement);
5 C.F.R. § 210.102 (Definitions); and 5 C.F.R. § 316.302(b)(1) (Selection of term
employees), in her submissions. She speculates that the Board of Veterans’ Appeals
implemented “an adaptation of offering Term limit positions and then changing them to
permanent positions” using these regulations and policy but does not appear to
challenge them under section 1204(f). RF, Tab 1 at 8-9, 13. To the extent she is
contending that these policies and regulations or their implementation required an
employee to commit a prohibited personnel practice, she fails to state a claim within the
Board’s jurisdiction. 5 C.F.R. § 1203.11(b); see also Kligman v. Office of Personnel
Management, 103 M.S.P.R. 614, ¶ 14 (2006) (finding that the OPM DEO Handbook is6
¶13With respect to her first allegation, the petitioner fails to provide any
statement explaining why her assertion that the Board of Veterans’ Appeals is
appointing “term” employees when, in her view, the employees should be
appointed in a “permanent” status under the regulations, has required or would
require an employee to commit any prohibited personnel practice. See 5 C.F.R.
§ 1203.11(b) (contents of regulation request must contain statement describing in
detail why the regulation or implementation of the regulation requires an
employee to commit a prohibited personnel practice). Rather than claiming that
5 C.F.R. § 316.301 is invalid because it requires commission of a prohibited
personnel practice, the petitioner appears to be claiming that the agency is
violating the regulation. However, the Board’s authority under 5 U.S.C.
§ 1204(f) is limited to its role in protecting the merit system from the enumerated
prohibited personnel practices; enforcement of regulations is not within the scope
of a regulation review request. Roesel, 119 M.S.P.R. 15, ¶ 9; see also National
Association of Government Inspectors v. Office of Personnel Management , MSPB
Docket No. CB-1205-13-0017-U-1 (0017), Final Order (Aug. 14, 2014), ¶ 7
(explaining that enforcement of regulations is outside the scope of a regulation
review request pursuant to section 1204(f)). Accordingly, the Board has no
jurisdiction over this allegation. See Garcia v. Office of Personnel Management ,
109 M.S.P.R. 266, ¶ 6 (2008) (where a petitioner fails to explain how a regulation
requires the commission of a prohibited personnel practice or fails to identify the
prohibited personnel practice at issue, the Board has denied the regulation review
request); Radford v. Office of Personnel Management , 69 M.S.P.R. 250, 254
(1995) (“To obtain review, the petitioner must allege facts showing that the
regulation requires an employee to commit a prohibited personnel practice.”).
¶14With respect to the petitioner’s second allegation—that the Board of
Veterans’ Appeals is hiring “permanent” employees and then changing their
status to “term”—the petitioner states that “reverting the Appellants [sic] status
not a regulation for purposes of section 1204(f)).7
to ‘Term Employee’” required employees to commit a prohibited personnel
practice by “deceiving or willfully obstructing any person with respect to such
person’s right to compete for employment,” arguing that she no longer has the
“capability to compete for any future position as a career tenured employee.” RF,
Tab 1 at 10, 12.
¶15According to the petitioner’s submissions, however, she applied to, and
received, a tentative offer for a term position, but later received a final letter
confirming her acceptance of her position which referred to the position as
“permanent.” RF, Tab 18 at 5, 11-14. The petitioner was not obstructed from
competing for a position. Nor has she explained how her classification as a term
employee would prevent her from competing for future positions. Under the
Board’s regulations, the individual requesting review must provide “a statement
(along with any relevant documents) describing in detail the reasons why the
regulation would require an employee to commit a PPP [prohibited personnel
practice].” 5 C.F.R. § 1203.11(b). Because she has failed to provide such a
statement, the petitioner has failed to meet her burden under 5 C.F.R.
§ 1203.11(b). See Garcia v. Office of Personnel Management , 109 M.S.P.R. 266,
¶ 6 (2008) (where a petitioner fails to explain how a regulation requires the
commission of a prohibited personnel practice, the Board has denied the
regulation review request).
¶16The petitioner also alleges that the agency violated 5 U.S.C. § 2302(b)(8),
which forbids an employee to “take or fail to take, or threaten to take or fail to
take, a personnel action with respect to any employee or applicant for
employment” because of a protected disclosure. She appears to allege that she
“notif[ied] Human Resources of being listed on a “Term Employee” mass email,”
and therefore the agency retaliated against her by changing her position from
“permanent” to “term.” RF, Tab 1 at 12. However, the petitioner does not
explain why any implementation of the regulation required the commission of this
alleged prohibited personnel practice. See Caracciolo v. Office of Personnel8
Management, 102 M.S.P.R. 140, ¶ 5 (2006) (finding that the petitioner did not
explain how implementation of the regulation would require an employee to
violate section 2302(b)(8), and therefore failed to allege a claim under
section 1204(f)). Instead, she appears to be requesting that the Board enforce the
whistleblower statute. But, as stated previously, such enforcement is outside the
scope of a regulation review request pursuant to section 1204(f). See 0017 Final
Order, ¶ 7. Rather, the petitioner may (if she has not already done so)
characterize her request as an individual right of action (IRA) claim under
5 U.S.C. § 1221. Accordingly, these allegations do not set forth a regulation
review claim that is within the Board’s jurisdiction.
¶17Similarly, the petitioner alleges that the implementation of 5 C.F.R.
§ 316.301 requires that the Board of Veterans’ Appeals violate 5 U.S.C.
§ 2302(b)(9), which prohibits an employee from taking, or failing to take, or
threatening to take or fail to take, a personnel action in reprisal for:
(A) the exercise of any appeal, complaint, or grievance right granted
by any law, rule, or regulation--
(i) with regard to remedying a violation of paragraph (8); or
(ii) other than with regard to remedying a violation of paragraph (8);
(B) testifying for or otherwise lawfully assisting any individual in
the exercise of any right referred to in subparagraph (A)(i) or (ii);
(C) cooperating with or disclosing information to the Inspector
General (or any other component responsible for internal
investigation or review) of an agency, or the Special Counsel, in
accordance with applicable provisions of law; or
(D) refusing to obey an order that would require the individual to
violate a law, rule, or regulation.
5 C.F.R. § 316.301.
¶18However, the petitioner has not proffered any explanation as to why the
alleged implementation of 5 C.F.R. § 316.301 would require an employee to
violate section 2302(b)(9). See Ragland v. Office of Personnel Management ,
115 M.S.P.R 374, ¶ 6 (2010) (finding that, although the petitioner cited a9
prohibited personnel action, he failed to explain how the agency’s purportedly
incorrect interpretation requires an employee to commit the prohibited personnel
practice, and therefore had not articulated a regulation review claim within the
Board’s jurisdiction); Bu rroughs v. Office of Personnel Management ,
94 M.S.P.R. 315, ¶ 6 (2003) (finding that the petitioner’s claim failed to explain
why the alleged failure to implement the regulation requires an employee to
commit a prohibited personnel practice), aff’d per curiam , 89 F. App’x 699 (Fed.
Cir. 2004). Again, her claim is properly characterized as a potential IRA claim
under 5 U.S.C. § 1221 and is not a regulation review claim within the Board’s
jurisdiction under section 1204(f).
¶19Finally, the petitioner alleges that Board of Veterans’ Appeals has violated
5 U.S.C. § 2302(b)(6), which prohibits:
[G]rant[ing] any preference or advantage not authorized by law, rule,
or regulation to any employee or applicant for employment
(including defining the scope or manner of competition or the
requirements for any position) for the purpose of improving or
injuring the prospects of any particular person for employment.
Id.
¶20Petitioner appears to challenge the extension of certain employees’ terms of
employment. RF, Tab 15 at 4; Tab 18 at 17-18. Again, however, the petitioner
did not explain why 5 C.F.R. § 316.301 or the agency’s implementation of it
would require the commission of a prohibited personnel practice; and to the
extent she asserts a stand-alone claim that the agency violated the statute, such
claim must be brought in an individual appeal and not as a section 1204(f)
regulation review request. See 0017 Final Order, ¶ 7. As a result, the Board has
no jurisdiction over this claim. See Ragland, 115 M.S.P.R 374, ¶ 6; Burroughs,
94 M.S.P.R. 315, ¶ 6.10
ORDER
¶21Accordingly, the petitioner’s request for regulation review is denied. This
is the final decision of the Merit Systems Protection Board in this proceeding.
Title 5 of the Code of Federal Regulations, section 1203.12(b) (5 C.F.R.
§ 1203.12(b)).
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Holloran_Kelli_K_CB-1205-23-0010-U-1_Final_Order.pdf | 2024-09-03 | KELLI KAYE HOLLORAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CB-1205-23-0010-U-1, September 3, 2024 | CB-1205-23-0010-U-1 | NP |
590 | https://www.mspb.gov/decisions/nonprecedential/Rath_DanielPH-3443-22-0273-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL RATH,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
PH-3443-22-0273-I-1
DATE: August 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel Rath , Brick, New Jersey, pro se.
Robert John Steeves, Jr. , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal challenging his nonselection for a
position. For the reasons set forth below, the appellant’s petition for review is
DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
On July 13, 2022, the appellant filed an appeal of the agency’s decision
rescinding a job offer for the position of Criminal Investigator (Special Agent)
because of issues identified in the appellant’s preemployment background and
eligibility checks. Initial Appeal File (IAF), Tab 1. In an initial decision dated
August 31, 2022, the administrative judge dismissed the appeal for lack of
jurisdiction, finding that nonselection for a position is generally not appealable to
the Board and that the appellant did not show that his nonselection constituted an
appealable employment practice within the scope of 5 C.F.R. Part 300, subpart A
or that it constituted a suitability action. IAF, Tab 15, Initial Decision (ID) at 5.
The administrative judge notified the parties that the initial decision would
become final on October 5, 2022, unless a petition for review was filed by that
date. ID at 6.
The appellant filed the instant petition for review on December 6, 2022.
Petition for Review (PFR) File, Tab 1. In a December 7, 2022 acknowledgement
letter from the Office of the Clerk of the Board, the Clerk’s Office informed the
appellant that the Board may dismiss his petition for review as untimely filed
unless he submitted a motion showing that his petition for review was timely filed
or that good cause existed for the filing delay. PFR File, Tab 2. The Clerk’s
Office enclosed a “Motion to Accept Filing as Timely and/or to Ask the Board to
Waive or Set Aside the Time Limit” form and informed the appellant that he had
until December 22, 2022 to file that motion. Id.
The appellant filed a motion on the timeliness of his petition for review on
December 31, 2022.2 PFR File, Tab 4. In the motion, the appellant avers that his
petition for review is timely because he did not receive notification of the initial
decision until December 6, 2022. Id. at 4. He alleges that the Board’s email
2 Although the appellant filed his motion 9 days late, we have considered it in
determining whether his petition for review was timely filed or whether good cause
existed for the filing delay. 2
notifications were sent to his spam filter and that this has caused him a delay in
finding emails from the Board. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant’s petition for review was untimely filed.
A petition for review generally must be filed within 35 days after the date
of issuance of the initial decision or, if the party filing the petition shows that the
initial decision was received more than 5 days after it was issued, within 30 days
after the party received the initial decision. 5 C.F.R. § 1201.114(e).
The appellant asserts that his petition is timely because he did not receive
notification of the initial decision until December 6, 2022, because of a spam
filter in his email account. PFR File, Tab 4 at 4. As a registered e-filer, however,
the appellant consented to accept all documents issued by the Board in electronic
form. IAF, Tab 1 at 2; see 5 C.F.R. § 1201.14(e)(1) (2022). Board documents
served electronically on registered e -filers are deemed received on the date of
electronic submission. 5 C.F.R. § 1201.14(m)(2) (2022). Here, a Board paralegal
specialist certified that the initial decision was sent via electronic mail to the
appellant on August 31, 2022. IAF, Tab 16 at 1. We therefore find that the
appellant received the initial decision on the date that it was issued, August 31,
2022. The appellant electronically filed his petition for review on December 6,
2022. PFR File, Tab 1. It is therefore just over 2 months late.
The appellant did not show good cause for his untimely filing.
The Board will waive its filing deadline only upon a showing of good cause
for the delay. Gaetos v. Department of Veterans Affairs , 121 M.S.P.R. 201, ¶ 5
(2014); 5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing
of an appeal, a party must show that he exercised due diligence or ordinary
prudence under the particular circumstances of the case. Alonzo v. Department of
the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant
has shown good cause, the Board will consider the length of the delay, the3
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to his inability to timely file his petition for review. Gaetos,
121 M.S.P.R. 201, ¶ 5; Moorman v. Department of the Army , 68 M.S.P.R. 60,
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Here, the appellant has not specifically asked the Board to waive the time
limit or made any arguments regarding good cause for the filing delay. PFR File,
Tab 1 at 4. Nevertheless, we have considered that the appellant is proceeding pro
se, which is a factor that works in his favor. However, the remaining factors do
not work in his favor. The Board has held that a 2-month filing delay is not
insignificant. See Madonti v. Department of the Army , 97 M.S.P.R. 660, ¶ 8
(2004) (finding that a nearly 2-month delay in filing a petition for review was not
minimal); Winfrey v. National Archives and Records Administration , 88 M.S.P.R.
403, ¶ 6 (2001) (finding that a 48-day delay was not minimal). Further, the
appellant has not demonstrated that he exercised due diligence. Because the
appellant registered as an e-filer, he was responsible for ensuring that emails from
@mspb.gov were not blocked by filters and for monitoring his case at the
Repository at e-Appeal Online to ensure that he received all case-related
documents. 5 C.F.R. § 1201.14(j)(2)-(3) (2022). The appellant does not explain
why he did not check the Repository for 2 months when he was on notice of and
should have been expecting the administrative judge to issue an initial decision.
He also does not explain why, if he was having difficulty finding emails from the
Board due to the spam filter, he did not take steps to rectify that problem.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s appeal challenging his nonselection.4
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Rath_DanielPH-3443-22-0273-I-1_Final_Order.pdf | 2024-08-30 | DANIEL RATH v. DEPARTMENT OF THE TREASURY, MSPB Docket No. PH-3443-22-0273-I-1, August 30, 2024 | PH-3443-22-0273-I-1 | NP |
591 | https://www.mspb.gov/decisions/nonprecedential/Hobson_Faye_R_CH-1221-17-0203-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FAYE R. HOBSON,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-1221-17-0203-W-2
DATE: August 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Faye R. Hobson , Clarksville, Tennessee, pro se.
Melissa Martinez , Esquire, and John S. Chamblee , Esquire, Peachtree City,
Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed this individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
further address the contributing factor criterion of the appellant’s jurisdictional
burden, we AFFIRM the initial decision.
¶2On petition for review, the appellant presents a number of arguments that
we find unavailing.2 For example, she asserts that this appeal should have been
handled by the Board’s Atlanta Regional Office, rather than the Central Regional
Office, and that the administrative judge should have ordered sanctions against
the agency for its responses, or lack thereof, in this appeal. Hobson v.
Department of Defense , MSPB Docket No. CH-1221-17-0203-W-2, Petition for
Review (PFR) File, Tab 1 at 1, 6. But she has not shown how the assignment of
her appeal to the Board’s Central Regional Office in Chicago, the office that
2 In her reply to the agency’s response to her petition for review, the appellant argues
that the agency’s response was untimely filed. Hobson v. Department of Defense ,
MSPB Docket No. CH-1221-17-0203-W-2, Petition for Review (PFR) File, Tab 4. This
argument is misplaced. The deadline for the agency to respond to the appellant’s
petition for review was April 16, 2023, but that day was a Sunday, and the Board’s
regulations provide that, in such circumstances, the pleading is due on the next business
day. 5 C.F.R. § 1201.23. The agency’s response was filed on April 17, 2023, and thus
it was timely filed and we have considered it. PFR File, Tab 3.
After the close of the record on review, on August 27, 2024, the appellant filed a
motion requesting a status conference regarding this appeal. PFR File, Tab 7. As the
Board’s regulations do not provide for status conferences during petition for review
proceedings, the appellant’s motion is denied.2
handled her earlier appeals, was improper and, even if it was improper, how the
assignment decision affected her substantive rights.3 See, e.g., Karapinka v.
Department of Energy , 6 M.S.P.R. 124, 127 (1981) (finding that an administrative
judge’s procedural error is of no legal consequence unless it is shown to have
adversely affected a party’s substantive rights). Regarding the agency’s response
to her refiled appeal, the agency filed its response by the date set by the
administrative judge in a status conference. Hobson v. Department of Defense ,
MSPB Docket No. CH-1221-17-0203-W-2, Refiled Appeal File (W-2 AF),
Tabs 5, 14-19. To the extent that the administrative judge changed the deadline
for the agency response, the appellant has not shown that the administrative judge
abused his discretion. See, e.g., Lee v. Department of Veterans Affairs ,
2022 MSPB 11, ¶ 9 (discussing the abuse of discretion standard and an
administrative judge’s wide discretion regarding sanctions). The appellant also
invokes prior equal employment opportunity (EEO) activity, disability and age
discrimination, and letters she has written to entities ranging from Congress to the
United Nations, all without clearly articulating why these matters are relevant to
the instant IRA appeal. PFR File, Tab 1 at 5-6; see Gabel v. Department of
Veterans Affairs, 2023 MSPB 4, ¶¶ 5, 8 (recognizing the limited scope of IRA
appeals, including the limitation that the Board only has IRA jurisdiction over
EEO activity covered by 5 U.S.C. § 2302(b)(9)(A)(i), meaning it seeks to remedy
whistleblower reprisal under 5 U.S.C. § 2302(b)(8)).
¶3Additionally, the appellant challenges the Board’s prior decision in this
case, which denied her petition for review of an initial decision dismissing the
appeal without prejudice for later refiling, but that decision is final. PFR File,
Tab 1 at 6; Hobson v. Department of Defense , MSPB Docket No. CH-1221-17-
0203-W-1, Final Order (Oct. 6, 2022) . Because the initial decision is final, there
3 The Board routinely reassigns appeals between regional offices for a number of
reasons, including workload balance and to have appeals heard by the office that
adjudicated related appeals. The appellant has pointed to nothing that precludes such
routine administrative actions. 3
is no basis for the appellant to challenge the previous decision before the Board.
The appellant also argues that the administrative judge was biased and should
have recused himself. PFR File, Tab 1 at 7-8. However, we are not persuaded as
the appellant has not overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. See Baker v. Social Security
Administration, 2022 MSPB 27, ¶ 20 (discussing the standards for a claim of bias,
including the presumption of honesty and integrity that accompanies
administrative adjudicators).
¶4To establish jurisdiction in an IRA appeal such as this, the appellant’s
burden includes presenting nonfrivolous allegations that (1) she made a protected
disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the protected disclosure or
activity was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a). Gabel, 2023 MSPB 4, ¶ 5 n.3.
As the U.S. Court of Appeals for the Federal Circuit put it: “[T]he question of
whether the appellant has non-frivolously alleged protected disclosures [or
activities] that contributed to a personnel action must be determined based on
whether the employee alleged sufficient factual matter, accepted as true, to state a
claim that is plausible on its face.” Id., ¶ 5 (quoting Hessami v. Merit Systems
Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020)).
¶5To the extent that the appellant alleged that the personnel actions at issue in
this IRA appeal were reprisal for disclosures about the special education program
made during the 2005-2006 school year, the administrative judge found that the
appellant failed to nonfrivolously allege that those disclosures were protected.
W-2 AF, Tab 31, Initial Decision (ID) at 7, 9-13 . To the extent that the appellant
separately alleged that the personnel actions were reprisal for a prior complaint to
the Office of Special Counsel (OSC) and a related Board appeal, the
administrative judge found that the appellant failed to present nonfrivolous
allegations for the contributing factor criterion. ID at 7, 13-16.4
The appellant failed to present nonfrivolous allegations that she made protected
disclosures that were a contributing factor to any personnel action at issue in this
appeal.
¶6Although the administrative judge found that the appellant did not present
the requisite nonfrivolous allegations of a protected disclosure, we modify the
initial decision to further find that the appellant failed to present nonfrivolous
allegations that her alleged disclosures—ones from the 2005-2006 school year
about a special education program—were a contributing factor in the disputed
personnel actions at issue in this IRA appeal, which occurred in 2015 and 2016.
In order to meet the contributing factor jurisdictional element, an appellant need
only raise a nonfrivolous allegation that the fact of, or content of, the protected
whistleblowing was one factor that tended to affect the personnel action in any
way. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 14;
Baldwin v. Department of Veterans Affairs , 113 M.S.P.R. 469, ¶ 22 (2010). One
way that the appellant may do this is through the knowledge/timing test, by
nonfrivolously alleging that the official taking the personnel action knew of the
whistleblowing and that the personnel action occurred within a period of time
such that a reasonable person could conclude that the whistleblowing was a
contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1); Chambers,
2022 MSPB 8, ¶ 14. But the knowledge/timing test is not the only way to
demonstrate the contributing factor element. Dorney v. Department of the Army ,
117 M.S.P.R. 480, ¶ 14 (2012). The Board will also consider other evidence,
such as evidence pertaining to the strength or weakness of the agency’s reasons
for taking the personnel action, whether the whistleblowing was personally
directed towards the officials taking the action, or whether these individuals had a
desire or motive to retaliate against the appellant. Id., ¶ 15.
¶7In this case, the appellant’s alleged disclosures occurred about 10 years
before the disputed personnel actions. Therefore, the knowledge/timing test is not
satisfied. See Agoranos v. Department of Justice , 119 M.S.P.R. 498, ¶ 21 (2013)5
(explaining that a lapse of more than 2 years between whistleblowing and the
alleged retaliatory personnel action is too great to satisfy the knowledge/timing
test). Furthermore, we found no instance in which the appellant has alleged,
either before the administrative judge or on review, that her 2005-2006
disclosures were directed toward the officials responsible for the 2015-2016
personnel actions at issue in this appeal or that those individuals had a motive to
retaliate against her based on the same, nor has she directed the Board’s attention
to any other circumstantial evidence that would support a finding that those
disclosures were a contributing factor in those personnel actions. See Dorney,
117 M.S.P.R. 480, ¶ 15.
¶8The absence of any substantive and significant explanation of why the
appellant might believe that her 2005-2006 disclosures were a contributing factor
to the 2015-2016 personnel actions is especially notable given the passage of
time, but also the appellant’s employment history, which spanned the globe. By
all accounts, she worked in Kentucky, Guam, and Korea during the relevant
period. E.g., Hobson v. Department of Defense , MSPB Docket No. CH-1221-17-
0203-W-1, Initial Appeal File (IAF) , Tab 1 at 1, 39-40, 52; W-2 AF, Tab 14
at 7-8. It seems that her disclosures concerned Barkley Elementary School at Fort
Campbell, Kentucky, where she worked in 2005-2006. IAF, Tab 9 at 3. But the
three personnel actions at issue in this appeal occurred while she worked
elsewhere, and involved different schools. The 2015 nonselection she challenges
involved a vacancy at Wassom Middle School at Fort Campbell, id. at 4, the 2016
denial of a reassignment request occurred while she was working at Humphreys
High School in Korea, IAF, Tab 10 at 6-7, and the 2016 reprimand involved the
appellant’s alleged discourteous behavior surrounding the reassignment request,
while she was still working in Korea, id. Under these circumstances, we find that
the appellant has not presented nonfrivolous allegations that her 2005 -2006
disclosures were a contributing factor in the 2015-2016 personnel actions.6
The appellant failed to present nonfrivolous allegations that her 2015 OSC
complaint and Board appeal constituted protected whistleblowing activity that
was a contributing factor to any personnel action at issue in this appeal.
¶9The administrative judge identified the appellant’s protected activity that
predated the disputed personnel actions at issue in this IRA appeal as including
the appellant’s first OSC complaint, OSC File No. MA-15-0932, closed in
April 2015, and the appellant’s first Board appeal, which she filed in May 2015.
ID at 14-15. However, the administrative judge found that the appellant did not
present any substantive allegations that these activities were a contributing factor
to her 2015 nonselection, her 2016 denial of reassignment, or her 2016 reprimand.
ID at 7, 13-16. He explained that the appellant presented nonfrivolous allegations
that pertinent officials knew of the appellant’s prior EEO activity, but not her
whistleblowing activity. ID at 14-16.
¶10On review, the appellant summarily states that she met the contributing
factor requirement of her jurisdictional burden. PFR File, Tab 1 at 11. She does
not elaborate. Instead, the appellant merely states that she “nonfrivolously
pleaded all of her cases within her submissions to the Board.” Id. Although we
are unmoved by the appellant’s conclusory assertion that she met her burden, we
modify the administrative judge’s contributing factor analysis.
¶11The administrative judge relied on the knowledge/timing test, alone, to find
that the appellant did not present nonfrivolous allegations for the contributing
factor criterion regarding any of the three personnel actions at issue in this
appeal, i.e., her 2015 nonselection, her 2016 denial of a reassignment request, and
her 2016 reprimand. ID at 13-16. While doing so for the first of these personnel
actions, the 2015 nonselection for a vacancy at Wassom Middle School in Fort
Campbell, the administrative judge cited several pieces of evidence. ID at 15
(citing, e.g., IAF, Tab 10 at 21; W-2 AF, Tab 17 at 7, Tab 22 at 4-5). This
included the appellant’s own pleadings, where she summarily stated that the
selecting official knew of her whistleblowing, but referenced evidence showing7
only that the selecting official knew of her EEO activity. IAF, Tab 10 at 21;
W-2 AF Tab 22 at 4-5. Another piece of evidence the administrative judge cited
was supplied by the agency. It was a declaration of an official responsible for the
appellant’s 2015 nonselection, stating that she did not know of the appellant’s
whistleblowing. W-2 AF, Tab 17 at 7. The administrative judge’s analysis of the
third personnel action is similar, citing the appellant’s own pleadings but also a
declaration submitted by the agency to conclude that the appellant failed to
present nonfrivolous allegations for the contributing factor criterion. ID at 16
(citing IAF, Tab 9 at 24; W-2 AF, Tab 17 at 4-5).
¶12As mentioned above, an appellant makes a nonfrivolous allegation if she
alleges “sufficient factual matter, accepted as true, to state a claim that is
plausible on its face.” Hessami, 979 F.3d at 1369. Stated another way, an
appellant need only assert “allegations that are ‘not vague, conclusory, or facially
insufficient,’ and that the appellant ‘reasonably believe[s]’ to be true.” Id.
at 1367 (quoting Piccolo v. Merit Systems Protection Board , 869 F.3d 1369, 1371
(Fed. Cir. 2017)).
¶13To the extent that the administrative judge may have erred by relying in part
on the agency’s evidence, we find that the error did not prejudice the appellant’s
substantive rights. The appellant’s pleadings contain nothing more than
conclusory, vague, and inconsistent allegations pertaining to the contributing
factor criterion. It was, therefore, not necessary to rely on the agency’s evidence.
On their own, the appellant’s pleadings do not contain nonfrivolous allegations
that pertinent officials knew of her whistleblowing activity, i.e., her prior OSC
complaint and Board appeal, at the time of the contested personnel actions, i.e.,
her 2015 nonselection, her 2016 denial of reassignment, or her 2016 reprimand.
¶14Looking past the knowledge/timing test and to the Dorney factors, we
remained unmoved. The appellant has not clearly articulated any substantive and
specific allegations that her protected activity was directed toward the officials
responsible for the personnel actions at issue in this appeal or that those8
individuals had a motive to retaliate against her based on the same, nor has she
directed the Board’s attention to any other circumstantial evidence that would
support a finding that the protected activity was a contributing factor in those
personnel actions. To illustrate, the appellant’s narrative response to the
administrative judge’s jurisdictional order contains only conclusory assertions
about the contributing factor criterion as to her alleged disclosures, along with
various allegations about her prior EEO activity, but nothing pertaining to her
whistleblowing activity, i.e., her prior OSC complaint and Board appeal. E.g.,
IAF, Tab 9 at 3-6. The remainder of her pleadings mostly contain unexplained
documentation, much of which involves her EEO activity or other matters, with
their relevance to this IRA appeal not readily apparent, e.g., IAF, Tabs 10-11;
W-2 AF, Tabs 22-23, along with the appellant’s insistence that she already met
her burden, e.g., W-2 AF, Tab 20 at 5.
¶15In sum, the appellant has not presented the nonfrivolous allegations
necessary to establish jurisdiction in this IRA appeal.
NOTICE OF APPEAL RIGHTS4
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 10
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 11
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 12
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Hobson_Faye_R_CH-1221-17-0203-W-2_Final_Order.pdf | 2024-08-30 | FAYE R. HOBSON v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-1221-17-0203-W-2, August 30, 2024 | CH-1221-17-0203-W-2 | NP |
592 | https://www.mspb.gov/decisions/nonprecedential/Soroka_DavidDC-0752-20-0180-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID SOROKA,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-0752-20-0180-I-1
DATE: August 30, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Soroka , Rockville, Maryland, pro se.
Adam A. Chandler , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal for misconduct. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant was a GS-14 Physical Scientist for the agency’s National
Oceanic and Atmospheric Administration (NOAA). Initial Appeal File (IAF),
Tab 6 at 30. He served as the Winter Weather Program Lead in the agency’s
Severe, Fire, Public, and Winter Weather Services Branch. His major duties in
that role included planning, conducting, coordinating, and reviewing scientific
work, as well as representing the organization on technical committees. IAF,
Tab 27 at 42, 44.
The appellant was indicted in the Circuit Court for Montgomery County,
Maryland on the charges of fourth degree sex offense (“unconsented sexual
contact” with a minor) and second degree assault. IAF, Tab 6 at 114-15. On
July 9, 2019, the appellant pleaded guilty to both charges, and on August 20,
2019, he was sentenced to 1-year and 10-year suspended sentences, running
concurrently, a $2,500 suspended fine, and 5 years of supervised probation. Id.
at 106, 111-12. He was ordered to and did register with the sex offender registry.
Id. at 94, 112. These incidents were highly publicized in numerous blogs and
news articles, which identified the appellant as a NOAA meteorologist. Id.
at 128-67.2
On September 4, 2019, the agency issued the appellant a notice of proposed
removal based on one charge of conduct unbecoming a Federal employee, with
two specifications based on the conduct underlying his conviction:
Specification 1: On or about and between July 15, 2017 and July 15,
2018, you had unconsented sexual contact with a minor of whom you
had temporary care and custody, and responsibility for supervision.
Specification 2: On or about and between July 15, 2017 and July 15,
2018, you assaulted a minor in the second degree.
Id. at 101-04. After the appellant responded to the notice both orally and in
writing, the agency issued a decision removing him effective November 6, 2019.
Id. at 22-71.
The appellant filed a Board appeal, arguing that the agency failed to prove
that his removal promoted the efficiency of the service. IAF, Tab 1 at 5, Tab 28
at 5-6. After a hearing, the administrative judge issued an initial decision
affirming the appellant’s removal. IAF, Tab 40, Initial Decision (ID). She found
that the charge was proven through the parties’ stipulations, the agency
established a nexus between the charges and the efficiency of the service, and the
removal penalty was within the tolerable limits of reasonableness. ID at 6-16.
The appellant has filed a petition for review contesting the administrative
judge’s penalty analysis, particularly with regard to the nature of his duties and
evidence concerning a proffered comparator. Petition for Review (PFR) File,
Tab 1. The agency has responded to the petition for review, and the appellant has
filed a reply to the agency’s response. PFR File, Tabs 8-9.
ANALYSIS
In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the
burden of proving by preponderant evidence that its action was taken for such
cause as would promote the efficiency of the service. MacDonald v. Department
of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 U.S.C. § 1201.56(a)(1)(ii). To meet
this burden, the agency must prove its charge, establish a nexus between the3
charge and the efficiency of the service, and demonstrate that the penalty imposed
was reasonable. Pope v. U.S. Postal Service , 114 F.3d 1144, 1147 (Fed. Cir.
1997). In this case, the appellant does not dispute the administrative judge’s
finding that the agency proved its charge and established nexus. For the reasons
explained in the initial decision, these findings are supported by the record and by
the law, and we will not revisit them here. ID at 6-7; see 5 C.F.R. § 1201.115
(“The Board normally will consider only issues raised in a timely filed petition or
cross petition for review.”). Accordingly, the only issue before the Board on
petition for review is that of penalty.
Because the agency’s charge was sustained, the Board’s authority to review
the penalty is limited. Cantu v. Department of the Treasury , 88 M.S.P.R. 253, ¶ 4
(2001). Specifically, the Board reviews an agency-imposed penalty only to
determine if the agency considered all of the relevant factors and exercised
management discretion within tolerable limits of reasonableness . Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 306 (1981). In determining whether
the selected penalty is reasonable, the Board gives due deference to the agency’s
discretion in exercising its managerial function of maintaining employee
discipline and efficiency, recognizing that the Board’s function is not to displace
management’s responsibility but to assure that management’s judgment has been
properly exercised. Id. at 302. Thus, the Board will disturb an agency’s chosen
penalty only if it finds that the agency failed to weigh relevant factors or that the
agency’s judgment clearly exceeded the limits of reasonableness. Id. at 306. The
Board has identified a nonexhaustive list of factors that are normally relevant for
consideration in determining the appropriateness of a penalty. Id. at 305-06.
In her initial decision, the administrative judge found that the deciding
official considered relevant factors and exercised his discretion within tolerable
limits of reasonableness. ID at 15. Specifically, the deciding official considered
the mitigating factors of the appellant’s 25 years of good service and lack of prior
discipline, but he found that these did not outweigh the gravity of the appellant’s4
misconduct and the effect that it had on his ability to represent the agency
publicly. ID at 7-8, 15. The administrative judge also considered the appellant’s
argument that the agency treated him disparately from another employee who was
on a sex offender registry, removing the appellant but doing nothing at all to the
comparator. However, the administrative judge found that the proffered
comparator was not similarly situated to the appellant, and in any event, the
deciding official did not know about this other individual when he issued his
decision. ID at 9-15.
On petition for review, the appellant advances two main arguments: first,
that publicly representing the agency is only a minor part of his job, and second,
that the agency did knowingly treat him differently than a similarly situated
individual. Regarding his public contacts, the appellant argues that the extent of
these contacts was a monthly email and an annual webinar. PFR File, Tab 1 at 6.
He also argues that he did not serve as “Acting Branch Chief” often, but rather
once a month or less over a 2-year period. Id. at 7. We agree with the appellant
that his occasional service as the Severe, Fire, Public, and Winter Weather
Services Acting Branch Chief does not seem to be particularly significant. It is
listed as a duty in his position description, IAF, Tab 27 at 46, but it does not
appear to be one of his core duties, there is no indication that it could not just as
easily be fulfilled by other program leads, and there is no explanation of how the
appellant’s misconduct would impair his ability to perform in that role any more
than in his normal role of Winter Weather Program Lead.
However, we cannot agree with the appellant that the Winter Weather
Program Lead lacks significant contacts with the public. Even if the appellant
only interacted with the public and agency partners about once a month as he
asserts, it was not necessarily the frequency of these interactions but rather their
nature that the deciding official found incompatible with his misconduct and the
surrounding publicity. Hearing Recording (HR), Track 1 at 30:40 (testimony of
the deciding official). As the deciding official explained it, as a Program Lead,5
the appellant was the public face of the Winter Weather Program and was the
designated point of contact for inquiries and comments from the public and
agency partners concerning Winter Weather Program matters. Id. at 11:35, 17:20,
29:00 (testimony of the deciding official). We find that the deciding official
properly considered the appellant’s interface with the public to be an aggravating
factor. See Von Muller v. Department of Energy , 101 M.S.P.R. 91, ¶¶ 23, aff’d,
204 F. App’x 17 (Fed. Cir. 2006), and modified on other grounds by Lewis v.
Department of Veterans Affairs , 113 M.S.P.R. 657 (2010), overruled on other
grounds by Singh v. U.S. Postal Service , 2022 MSPB 15.
Regarding the appellant’s argument that the agency knowingly treated him
differently than a similarly situated individual, we agree with the administrative
judge that the appellant and the proffered comparator were not similarly situated
and that even if they were, the agency did not knowingly and unjustifiably treat
them differently. See Singh, 2022 MSPB 15, ¶¶ 13-14. We further find that any
difference in treatment between the appellant and the comparator would not
justify mitigation of the penalty in this case in any event. The consistency of the
penalty is just one of many relevant factors to be considered in determining an
appropriate penalty. Therefore, while the fact that one employee receives a more
severe penalty than that imposed on a comparator who has committed the same or
similar misconduct should be considered in favor of mitigating the penalty in a
given case, mitigation is by no means required in all such cases. Id., ¶ 18.
Additionally, a manager should not be forced to go easy on an employee who
committed serious misconduct because of the unwarranted leniency of some other
manager in the past. Id., ¶ 18 n.5. If the agency took no disciplinary action
against an employee who engaged in conduct similar to that of the appellant, we
find that the agency’s failure to act against that employee would constitute
unwarranted leniency that does not provide a basis for mitigation in this case.
On petition for review, the appellant has proffered evidence that he
obtained after the initial decision was issued. Specifically, he has submitted what6
appear to be excerpts from an email exchange between two coworkers, as well as
recordings of telephone conversations that he had with other coworkers. PFR
File, Tab 1 at 10-11, 13, Tabs 3-4. According to the appellant, the excerpts relate
to when the deciding official learned about the comparator’s conduct. PFR File,
Tab 9 at 7. Under 5 C.F.R. § 1201.115, the Board will not consider evidence
submitted for the first time on petition for review absent a showing that it is both
new and material. Archuleta v. Department of the Air Force , 16 M.S.P.R. 404,
407 n.3 (1983). Evidence is material when it is of sufficient weight to warrant an
outcome different from that of the initial decision. Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980).
We find that the appellant has not shown that this evidence was previously
unavailable despite his due diligence. The appellant was notified at the time the
removal decision was issued that the deciding official claimed to be unaware of
the comparator’s identity. IAF, Tab 6 at 24. The appellant could have sought
further information about this during discovery, through deposition or otherwise,
and either learned of the deciding official’s expected testimony ahead of time or
obtained information to impeach that testimony. See generally 5 C.F.R.
§ 1201.71. The appellant’s failure to avail himself of the Board’s discovery
procedures with respect to the central point of his appeal does not demonstrate
due diligence. See Campbell v. U.S. Postal Service , 51 M.S.P.R. 122, 125 (1991).
We also find that the appellant has not shown that this evidence would
likely be material to the outcome of the appeal. In light of our finding above
regarding the consistency of the penalty, evidence about the deciding official’s
knowledge of the comparator’s conduct would not warrant a different outcome.
In his reply to the agency’s response to the petition for review, the
appellant has submitted for the first time a letter from the attorney in his criminal
case and an email from his former supervisor, which he proffers for the purpose
of establishing his rehabilitative potential. PFR File, Tab 9 at 4, 18, 26-28.
However, as with the other evidence on review, the appellant has not shown that7
this information was previously unavailable despite his due diligence, and we
therefore decline to consider it. See Avansino v. U.S. Postal Service , 3 M.S.P.R.
211, 214 (1980).
For the reasons explained in the initial decision, we agree with the
administrative judge that the deciding official considered the relevant penalty
factors and exercised his discretion within the tolerable limits of reasonableness.
Given the nature and seriousness of the appellant’s misconduct and its highly
publicized nature, we cannot conclude that the deciding official abused his
discretion in determining that removal was the appropriate course of action to
protect the agency and its public image, despite the appellant’s otherwise
excellent service record.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain9
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 10
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited 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. 11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. Contact information for
the courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Soroka_DavidDC-0752-20-0180-I-1_Final_Order.pdf | 2024-08-30 | DAVID SOROKA v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0752-20-0180-I-1, August 30, 2024 | DC-0752-20-0180-I-1 | NP |
593 | https://www.mspb.gov/decisions/nonprecedential/Serrano_VeronicaDA-1221-20-0121-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERONICA SERRANO,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DA-1221-20-0121-W-1
DATE: August 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Veronica Serrano , Mission, Texas, pro se.
Patricia McNamee and Dora Malykin , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied the appellant’s request for corrective action. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the administrative judge’s analysis regarding the
appellant’s protected disclosures and allegation of a hostile work environment,
clarify that the appellant’s 2017 reprimand is a covered personnel action but that
the appellant failed to establish contributing factor regarding this personnel
action, and bolster the administrative judge’s discussion of the factors set forth in
Carr v. Social Security Administration , 185 F.3d 1318 (Fed. Cir. 1999), we
AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a GS-7 Purchasing Agent with the Animal
and Plant Health Inspection Service, Plant Protection and Quarantine, Field
Operations in Edinburg, Texas. Initial Appeal File (IAF), Tab 31 at 11. As a
Purchasing Agent, the appellant was responsible for coordinating and
administering procurement and inventories of supplies to support operational
plant health programs. Id. at 12. The appellant was required to attain and
maintain a $25,000 procurement authority, which initially required her to
complete 60 hours of training. IAF, Tab 10 at 6, Tab 31 at 13, 19. On June 9,
2015, the Facilities Manager, who was the appellant’s first-line supervisor,
informed the appellant in a letter that she had completed only 37 of the required2
60 hours of training. IAF, Tab 31 at 19-20; Hearing Compact Disc (HCD)
(testimony of Facilities Manager). The appellant completed the training within a
few weeks after the Facilities Manager sent her this letter. HCD (testimony of
Facilities Manager).
On March 27, 2017, the Facilities Manager issued a letter of reprimand to
the appellant. IAF, Tab 9 at 75-77. The reprimand was based on a January 19,
2017 meeting between the appellant, the Facilities Manager, a Program Support
Specialist, and another agency employee during which the appellant allegedly
became “defensive.” Id. at 75. The Facilities Manager also alleged that the
appellant responded disrespectfully to an email he had sent her on February 27,
2017, and that she failed to timely provide him with information he requested. Id.
On April 12, 2017, the agency placed the appellant on administrative leave
for 6 months following a workplace violence complaint made against her by the
Program Support Specialist. IAF, Tab 15 at 17, 32. After being placed on
administrative leave, in April and May 2017, the appellant filed complaints with
the agency’s Office of Inspector General (OIG) as well as numerous
Congressional and Government officials. IAF, Tab 15 at 16-24, Tab 28 at 82.
On October 3, 2017, the appellant returned to work for the agency at a
different work site; specifically, at a Federal building in McAllen, Texas. IAF,
Tab 11 at 26, Tab 15 at 15. In May 2018, she was relocated to Mission, Texas.
IAF, Tab 11 at 26. Thereafter, in October or November 2017, the Administrative
Officer became the appellant’s first-line supervisor. HCD (testimony of
Administrative Officer).
In October 2018, the appellant’s procurement authority was revoked
because she was behind in meeting her continuous learning requirements.
IAF, Tab 10 at 22. By letter dated December 20, 2018, the agency suspended the
appellant for 3 calendar days, effective January 8, 2019. IAF, Tab 11 at 41 -43.
The suspension was based on a charge of improper conduct relating to the
appellant’s alleged failure to pay United Parcel Service (UPS) invoices. Id. 3
On September 16, 2019, the Administrative Officer issued her a notice of
proposed removal based on the following two charges: (1) failure to maintain
procurement authority; and (2) failure to follow instructions. IAF, Tab 7
at 15-19. Under the one specification underlying the first charge, the agency
alleged that, on October 18, 2018, the appellant’s “procurement authority was
revoked as [she] failed to complete the necessary training to maintain the
necessary purchasing authority.” Id. at 15. In support of the second charge, the
agency listed two specifications; first, it alleged that the appellant had been
instructed, but had failed, to pay UPS invoice 4314118783 in the amount of
$603.48, and second, that the appellant had failed to pay UPS invoice 401011488
in the amount of $3,903.90, after being instructed to do so. Id. at 16. On
October 22, 2019, the deciding official, who was the Associate Executive
Director, sustained the removal. IAF, Tab 11 at 12-15.
The appellant filed a complaint with the Office of Special Counsel (OSC)
on October 8, 2019. IAF, Tab 2 at 34, Tab 14 at 25-50. Following the agency’s
removal decision, she requested that OSC stay her removal, and OSC stayed her
removal for 45 days. IAF, Tab 14 at 12, 22, 52. On November 18, 2019, OSC
notified the appellant that it was closing her file and not seeking corrective action
on her behalf. Id. at 8, 23. The following day, the agency informed the appellant
that it was removing her effective that date. Id. at 22. This appeal followed.
IAF, Tab 2.
The administrative judge determined that the appellant established
jurisdiction over her appeal. IAF, Tab 16, Tab 76, Initial Decision (ID) at 10-13.
Specifically, the administrative judge found that the appellant exhausted her
administrative remedies with OSC prior to filing her Board appeal, and that
she nonfrivolously alleged that she made protected disclosures and engaged in
protected activities that were a contributing factor in a personnel action.
IAF, Tab 16 at 1-3; ID at 12. In particular, the administrative judge found that
the appellant alleged to OSC the following alleged protected activities and/or4
disclosures: complaints or letters to the agency’s OIG in both 2015 and
April 2017; April 2017 letters to President Donald Trump, U.S. Representative
Filemon Vela, Texas State Representative Armando Martinez, and Texas State
Representative Sergio Munoz; and May 2017 letters to U.S. Representative Henry
Cuellar, Secretary Sonny Perdue, and Senator Ted Cruz. ID at 14-17; IAF,
Tab 14 at 18-19, Tab 15 at 20-21, 23-24, Tab 16 at 1-2, Tab 28 at 82. The
administrative judge further found that the appellant alleged to OSC that her
disciplinary actions for failing to pay the UPS invoices constituted retaliation by
the agency for refusing to disobey a law, rule, or regulation. IAF, Tab 14 at 36,
Tab 16 at 1; ID at 18.
After holding a hearing,2 the administrative judge issued an initial decision
denying the appellant’s request for corrective action. ID. The administrative
judge found that the appellant engaged in protected whistleblowing activity under
5 U.S.C. § 2302(b)(9)(C) when she submitted an anonymous complaint to the
agency OIG in 2015, and when she sent a report or letter to the agency OIG in
2017. ID at 15. The administrative judge further found that the appellant made
protected disclosures under § 2302(b)(8) and engaged in protected activity under
§ 2302(b)(9) through her 2017 letters to President Trump, Secretary Perdue, and
the legislators. ID at 16-17. In addition, the administrative judge found that the
appellant failed to show that she refused to obey an order that would have
required her to violate a law, rule, or regulation. ID at 17-22.
The administrative judge found that the appellant alleged that she was
subjected to the following six purported personnel actions: (1) placement on paid
administrative leave on April 12, 2017; (2) her office moving to two different
locations, first on October 3, 2017, and then on May 3, 2018; (3) a 3 -day
suspension in January 20193; (4) her September 16, 2019 proposed removal;
2 The hearing was held via Zoom for Government. IAF, Tab 69.
3 The administrative judge noted that the suspension occurred in February 2019, but, in
fact, it was effective in January 2019. IAF, Tab 11 at 41-43. Any such error, however,
did not prejudice the appellant’s substantive rights. See Panter v. Department of the Air5
(5) the agency’s decision to remove her on November 19, 2019; and (6) creation
of a hostile work environment. ID at 22. The administrative judge found that the
appellant failed to establish contributing factor with regard to her placement on
administrative leave, but that she did establish contributing factor regarding her
office moves. ID at 23-25. Moreover, the administrative judge found that the
appellant established that her protected activities and disclosures were a
contributing factor in the appellant’s 3-day suspension, proposed removal,
and removal decision. ID at 25-26. Concerning the appellant’s allegation that
she was subjected to a hostile work environment, the administrative judge found
that the appellant’s allegations failed to rise to the level of a personnel action
under § 2302(a)(2)(A)(xii). Having found that the appellant established a prima
facie case of whistleblower reprisal, the administrative judge turned to the issue
of whether the agency met its burden of proof. After applying the factors set
forth in Carr, 185 F.3d 1318, the administrative judge concluded that the agency
showed by clear and convincing evidence that it would have taken the same
actions in the absence of the appellant’s protected activity. ID at 28-39.
The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. On review, the appellant reiterates her allegation that she was
removed for having made protected disclosures and for refusing to obey an order
that would have violated a law, rule, or regulation. Id. at 10-11, 20, 27-30.
She further alleges that the agency subjected her to a hostile work environment.
Id. at 13. In addition, the appellant contends that the agency did not have
justification to remove her from the Federal Government, citing in part to the
testimony of various witnesses and disputing the administrative judge’s
credibility findings regarding some of these witnesses. Id. at 9-23. The appellant
further appears to allege that an agency employee who backfilled the appellant’s
position has failed to obtain the necessary procurement authority but has not been
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).6
disciplined. Id. at 24, 26-27. The agency has filed a response to the appellant’s
petition for review. PFR File, Tab 3.
ANALYSIS
After establishing the Board’s jurisdiction in an individual right of action
(IRA) appeal, as the administrative judge found the appellant did in this case, an
appellant must establish a prima facie case of whistleblower retaliation by
proving by preponderant evidence that she made a protected disclosure or
engaged in protected activity that was a contributing factor in a personnel action
taken against her. 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland
Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant makes out a prima facie
case, then the agency is given an opportunity to prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
protected disclosure or activity.4 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R.
335, ¶ 7.
The administrative judge properly found that the appellant engaged in protected
activity by filing complaints with the agency’s OIG.
As set forth above, the administrative judge found that the appellant
engaged in protected activity when she filed a complaint with the agency’s OIG
in 2015 and made a disclosure to the agency’s OIG in 2017. ID at 15-16. We
agree. Under 5 U.S.C. § 2302(b)(9)(C), an employee engages in protected
activity when she discloses information to an agency’s OIG “in accordance with
applicable provisions of law.” Under the broadly worded provision of 5 U.S.C.
§ 2303(b)(9)(C), any disclosure of information to OIG is protected regardless of
its content as long as such disclosure is made in accordance with applicable
4 Clear and convincing evidence is that measure or degree of proof that produces in the
mind of the trier of fact a firm belief as to the allegations sought to be established; it is
a higher standard than the “preponderance of the evidence” standard. Sutton v.
Department of Justice , 94 M.S.P.R. 4, ¶ 18 (2003 ), aff’d, 97 F. App’x 322 (Fed. Cir.
2004); 5 C.F.R. § 1209.4(e).7
provisions of law.5 Fisher v. Department of the Interior , 2023 MSPB 11, ¶ 8.
Thus, the appellant’s 2015 and 2017 disclosures meet that broad standard and
constitute protected activity under 5 U.S.C. § 2303(b)(9)(C).
The administrative judge properly found that the appellant made protected
disclosures under 5 U.S.C. § 2302(b)(8).
A disclosure is protected under 5 U.S.C. § 2302(b)(8) if the individual has
a reasonable belief that the information being disclosed 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 ascertainable by the
employee could reasonably conclude that the actions of the Government evidence
one of these types of wrongdoing. Id.
Here, the administrative judge found that the appellant made protected
disclosures in the following communications: (1) an April 17, 2017 letter to
Texas Representative Sergio Munoz; (2) an April 23, 2017 letter to U.S.
Representative Filemon Vela; (3) an April 26, 2017 letter to Texas Representative
Armando Martinez; (4) an April 28, 2017 letter to President Donald Trump, (5) a
May 10, 2017 letter to Senator Cruz; (6) a May 18, 2017 letter to Congressman
Henry Cuellar; and (7) a May 18, 2017 letter to Secretary Sonny Perdue.
IAF, Tab 15 at 20-24, 26-31, 34-39, Tab 28 at 82; ID at 14-17. The parties do not
challenge the administrative judge’s finding that the appellant made a protected
5 The nature of the disclosures to OIG or OSC may be relevant at the merits stage of an
IRA appeal, when an appellant must prove the contributing factor element by
preponderant evidence and the agency can defend itself by providing clear and
convincing evidence that it would have taken the same personnel action absent the
protected activity. Fisher v. Department of the Interior , 2023 MSPB 11 , ¶ 8 n.1; see
Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 13 (2016) (setting
forth the elements and burden of proving the merits of an IRA appeal based on a claim
of reprisal for perceived activity under 5 U.S.C. § 2302(b)(9)(C)), overruled on other
grounds by Requena v. Department of Homeland Security , 2022 MSPB 9.8
disclosure under 5 U.S.C. § 2302(b)(8) on review and, as set forth below, we
discern no basis for disturbing the administrative judge’s conclusion on this issue.
However, because the administrative judge did not identify the category of
wrongdoing at issue under § 2302(b)(8), we modify the initial decision to specify
that the appellant’s communications disclosed a substantial and specific danger to
public health or safety.
The administrative judge properly noted that, in her April and May 2017
letters, the appellant reported that the Facilities Manager had employees climb a
125-foot-tall boom to repair a water tower, and yelled at her when she reported
that it was a safety issue. ID at 16; IAF, Tab 15 at 20-24, 26-31, 34-39, Tab 28
at 82. The appellant alleged that the job required professionals, that her
coworkers were not qualified to perform the task, and that they were placed in
harm’s way. ID at 16; IAF, Tab 15 at 20-24, 26-31, 34-39, Tab 28 at 82.
The inquiry into whether an appellant disclosed danger that is sufficiently
substantial and specific to warrant finding that it is protected whistleblowing “is
guided by several factors, among these: (1) the likelihood of harm resulting from
the danger; (2) when the alleged harm may occur; and (3) the nature of the harm,
i.e., the potential consequences.” Chambers v. Department of the Interior ,
602 F.3d 1370, 1376 (Fed. Cir 2010) (quoting Chambers v. Department of the
Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008)). The Board has held that
revelation of a negligible, remote, or ill-defined peril that does not involve any
particular person, place, or thing is not a protected disclosure of a substantial and
specific danger to public health or safety. See Sazinski v. Department of Housing
and Urban Development , 73 M.S.P.R. 682, 686 (1997) (determining that
an appellant’s expression of a fear that someday the agency’s field engineering
program might not have the resources needed was not a protected disclosure of a
substantial and specific danger to public health or safety). However, a danger
may be substantial and specific even though the perceived danger is to a limited
number of Government personnel and not to the general public at large.9
See Wojcicki v. Department of the Air Force , 72 M.S.P.R. 628, 634 (1996)
(finding that an appellant’s report that employees were coughing up blood as a
result of improper sandblasting procedures was a disclosure of a substantial and
specific danger).
Here, the appellant reasonably believed that she disclosed a specific and
substantial risk to the health and safety of agency employees, i.e., the risk of
harm and injury to untrained and unqualified agency employees tasked with
climbing a 125-foot boom to repair a water tower. See Chambers, 602 F.3d
at 1379 (finding that the appellant’s disclosure that a reduction in the number of
police officers available resulted in more traffic accidents was sufficiently
specific); see also Wojcicki, 72 M.S.P.R. at 634 (determining that the appellant’s
disclosure regarding import sandblasting procedures was substantial because it
affected the appellant as well as several coworkers). Moreover, given the facts
known to and easily ascertainable by the appellant, including her awareness of
safety measures in place relating to the repair of the water tower, she reasonably
believed that the likelihood of such harm occurring was more than speculative.
See Parikh v. Department of Veterans Affairs , 116 M.S.P.R. 197, ¶ 15 (2011)
(noting that the existence of a triage unit and different areas in the hospital
providing different levels of care and monitoring was evidence of the likelihood
of harm due to improper patient care and management issues). In particular,
the appellant explained that, due to her procurement duties, she knew that trained
professionals were required to perform the task of climbing the 125-foot boom to
repair the water tower and that performing the repair of the water tower required
a contract. To establish that she had a reasonable belief that the information
she disclosed evidenced a specific and substantial danger, the appellant was not
required to prove that the condition disclosed actually established such a danger,
but only that a reasonable person in her position would have believed that it
evidenced such a danger. See, e.g., Mogyorossy v. Department of the Air Force ,
96 M.S.P.R. 652, ¶ 7 (2004). Because we find that the appellant reasonably10
believed that her communications evidenced a specific and substantial danger to
the safety of agency employees, we modify the initial decision to find that the
appellant’s April and May 2017 letters disclosed a substantial and specific danger
to the safety of agency employees.6
The administrative judge correctly found that the appellant failed to prove that
she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D).
On review, the appellant reiterates her assertion that the agency disciplined
her for refusing to obey an order that would have required her to violate a law,
rule, or regulation. PFR File, Tab 1 at 8-10. As explained in the initial decision,
the appellant challenged the agency’s decision to suspend her for 3 days in
January 2019, propose her removal in September 2019, and remove her in
November 2019, based on her alleged failure to pay UPS invoices. Id.; ID
at 17-22. The appellant alleges in her petition for review that the agency’s order
to pay the UPS invoices violated Federal and agency regulations requiring that all
invoice payments be supported by a receiving report or other Government
documentation authorizing payment. PFR File, Tab 1 at 8-9, 14-15. Specifically,
she contends that U.S. Department of Agriculture (USDA) Cardholder Purchase
Card Regulations require that all purchases comply with Federal Acquisition
Regulation (FAR) and agency regulations, and that, pursuant to FAR 32.095,
all invoices needed to be supported with the relevant Government documentation.
Id. at 8, 14. The appellant argues that she did not receive necessary supporting
documentation from the agency to pay the UPS invoices, and that she therefore
would have violated a regulation by paying the UPS invoices as instructed. Id.
As set forth by the administrative judge, it is a prohibited personnel
practice under 5 U.S.C § 2302(b)(9)(D) to take an action against an employee for
6 In light of this finding, and because the parties do not challenge the administrative
judge’s findings relating to the appellant’s April and May 2017 letters on review, we do
not consider whether the appellant’s other allegations in these communications evidence
another category of wrongdoing under 5 U.S.C. §2302(b)(8). Similarly, we do not
consider whether these communications constituted protected activity under
section 2302(b)(9).11
“refusing to obey an order that would require the individual to violate a law, rule,
or regulation.”7 ID at 17. In the initial decision, the administrative judge
assessed the appellant’s argument that relevant regulations required her to have
supporting documentation to pay the UPS invoices, and that the appellant could
not pay the invoices because she was not involved in their preapproval. ID at 18.
The administrative judge considered the appellant’s contention that the payment
of invoices violated Section 4.5 and Section 7 of the USDA Cardholder Purchase
Card Regulations, which set forth requirements on maintaining documentation on
purchase card transactions. Id. Following a review of documentary evidence,
and after making comprehensive credibility determinations, the administrative
judge determined that the appellant failed to show that agency officials’
instructions to pay the UPS invoices required her to violate a law, rule, or
regulation. ID at 18-22. In relevant part, the administrative judge placed great
weight on the testimony of the Director of the Acquisition and Asset Management
Division, who explained that UPS invoices reflected payment for services, not
purchases, and that he did not agree with the appellant that preapproval was
needed. ID at 18-20. The administrative judge noted that the testimony of the
Director of the Acquisition and Asset Management Division was supported by
7 The Follow the Rules Act (FTRA), Pub. L. No. 115-40, 131 Stat. 861, was signed into
law on June 14, 2017. Prior to the enactment of the FTRA, 5 U.S.C. § 2302(b)(9)(D)
made it a prohibited personnel practice to take or fail to take, or threaten to take or fail
to take, a personnel action against an employee or applicant for “refusing to obey an
order that would require the individual to violate a law.” See Fisher, 2023 MSPB 11 ,
¶ 11. In 2016, the U.S. Court of Appeals for the Federal Circuit held that the protection
in section 2302(b)(9)(D) extended only to orders that would require the individual to
take an action barred by statute. Rainey v. Merit Systems Protection Board , 824 F.3d
1359, 1361-62, 1364-65 (Fed. Cir. 2016 ). The FTRA expanded 5 U.S.C. § 2302(b)(9)
(D) to provide that it is a prohibited personnel practice to take or fail to take, or
threaten to take or fail to take, an action against an employee or applicant because of
“refusing to obey an order that would require the individual to violate a law, rule, or
regulation.” 131 Stat. at 861; Fisher, 2023 MSPB 11, ¶ 12. The administrative judge
properly applied the FTRA in considering the appellant’s allegations that the agency
disciplined her for refusing to obey an order that would have required her to violate a
law, rule, or regulation. ID at 17-22.12
that of other witnesses, including the deciding official on the 3-day suspension.
ID at 20.
On review, the appellant does not appear to challenge the administrative
judge’s credibility findings on these witnesses’ testimony; in fact, the appellant
acknowledges that they were “candid in their testimony.” PFR File, Tab 1 at 18.
Rather, the appellant alleges that the administrative judge erred in giving weight
to the testimony of the deciding official on the removal action. Id. at 15. In the
initial decision, the administrative judge noted that the deciding official on the
removal action disagreed with the appellant’s position that she should have
preapproved the UPS invoices earlier in the process. ID at 21. The
administrative judge noted that, according to the deciding official, a UPS invoice
is a “bill, not a purchase,” and that, in her mind, there is a distinction between
making a purchase and paying outstanding bills because the agency uses UPS on
a regular basis. Id. Citing to Hillen v. Department of the Army , 35 M.S.P.R. 453,
458 (1987), the administrative judge found the deciding official’s testimony
regarding the payment of UPS invoices to be clear and straightforward. The
appellant’s allegations on review do not provide a basis for disturbing the
administrative judge’s well-reasoned credibility findings on review, especially
given that the deciding official’s testimony on this issue is consistent with that of
other witnesses whose testimony the appellant does not appear to dispute . See
Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to
disturb the administrative judge’s credibility findings when the administrative
judge considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions). In light of the above, we agree with the administrative
judge’s well-reasoned finding that the appellant failed to prove that she engaged
in protected activity under 5 U.S.C. § 2302(b)(9)(D).13
The administrative judge properly found that the appellant established that her
protected activities and disclosures were a contributing factor in a personnel
action by preponderant evidence.
The administrative judge properly found that the appellant did not
establish that she was subjected to a hostile work environment.
As set forth above, the administrative judge found that the appellant
alleged that she was subjected to the following six purported personnel actions:
(1) placement on paid administrative leave on April 12, 2017; (2) her
office moving to two different locations, first on October 3, 2017, and then on
May 3, 2018; (3) a 3-day suspension in January 2019; (4) her September 16, 2019
proposed removal; (5) the agency’s decision to remove her on November 19,
2019; and (6) creation of a hostile work environment. ID at 22. On review, the
appellant appears to disagree with the administrative judge’s finding that she was
not subject to a hostile work environment. PFR File, Tab 1 at 13; ID at 27-28. In
analyzing the appellant’s hostile work environment allegation, the administrative
judge reviewed the following actions: (1) the appellant was humiliated and
thrown out of meetings; (2) the Administrative Officer disparaged her at
meetings; and (3) she received a reprimand in March 2017, and was ostracized.8
As an initial matter, the Board has found that a letter of reprimand is a
personnel action within the meaning of the Whistleblower Protection Act (WPA).
Horton v. Department of Veterans Affairs , 106 M.S.P.R. 234, ¶ 18 (2007). Thus,
the March 2017 reprimand should have been considered as an independent
personnel action, and we modify the initial decision accordingly.
We agree, however, with the administrative judge that the appellant’s
remaining allegations that she was disparaged during, and thrown out of,
meetings do not constitute a hostile work environment under the WPA. During
the period of time following the issuance of the initial decision, we issued a
decision that clarified the meaning of “hostile work environment” as it pertains to
8 While the initial decision noted that the reprimand occurred in April 2017, the record
reflects that it was actually issued in March 2017. IAF, Tab 9 at 75-77. 14
personnel actions under the WPA. Skarada v. Department of Veterans Affairs ,
2022 MSPB 17. In Skarada, we explained that allegations of a hostile work
environment may establish a personnel action under the WPA only if they meet
the statutory criteria, i.e., constitute a significant change in duties,
responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A); Skarada,
2022 MSPB 17, ¶ 16. Thus, although the “significant change” personnel action
should be interpreted broadly to include harassment and discrimination that could
have a chilling effect on whistleblowing or otherwise undermine the merit
system, only agency actions that, individually or collectively, have practical and
significant effects on the overall nature and quality of an employee’s working
conditions, duties, or responsibilities will be found to constitute personnel actions
covered by § 2302(a)(2)(A)(xii).
Here, although the administrative judge did not have the benefit of Skarada
when she issued the initial decision, she properly considered the alleged incidents
collectively to determine whether they amounted to a significant change in
working conditions. ID at 27-28. The administrative judge determined that,
while the appellant may have been personally insulted by these incidents, the
appellant did not show that she was subjected to the type of objectionable
behavior that could be considered a change in working conditions sufficient to
constitute a hostile work environment. Id. The appellant’s cursory and
conclusory arguments to the contrary on review do not provide a basis for
disturbing this finding. PFR File, Tab 1 at 13. Specifically, the appellant has not
shown either below or on review that any actions by agency officials, such as
throwing her out of and disparaging her during meetings, were so severe and/or
pervasive to amount to significant effects on the overall nature and quality of the
appellant’s working conditions. See, e.g., Skarada, 2022 MSPB 17, ¶¶ 26-29
(determining that the appellant’s claims that certain agency officials told him to
stop attending certain meetings, excluded him from the hiring process for two
new hires, avoided him, failed to provide him with adequate guidance, excluded15
him from meetings, would not support his request for a review of his position,
yelled at him, and convened investigations against him were not sufficiently
severe or pervasive to significantly impact the appellant’s working conditions).
Thus, we agree with the administrative judge’s conclusion that the appellant’s
allegations fail to amount to a hostile work environment under the WPA.
The administrative judge correctly found that the appellant
established contributing factor.
As set forth above, the administrative judge found that the appellant
established that her protected whistleblowing was a contributing factor in the
following actions: (1) her office moving to two different locations, first on
October 3, 2017, and then on May 3, 2018; (2) a 3-day suspension in
February 2019; (3) her September 16, 2019 proposed removal; and (4) the
agency’s decision to remove her on November 19, 2019. ID at 22-28. The
administrative judge did not find that the appellant established contributing factor
regarding placement on paid administrative leave on April 12, 2017. ID at 24.
The most common way of proving that a disclosure was a contributing
factor in a personnel action is the “knowledge/timing” test. Wadhwa v.
Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d per curiam, 353 F.
App’x 435 (Fed. Cir. 2009). Under that test, an appellant can prove the
contributing factor element through evidence that the official taking the personnel
action knew of the whistleblowing disclosure and took the personnel action
within a period of time such that a reasonable person could conclude that the
disclosure was a contributing factor in the personnel action. Id.; see 5 U.S.C.
§ 1221(e)(1). However, the knowledge/timing test is not the only way for
an appellant to satisfy the contributing factor standard. Dorney v. Department of
the Army, 117 M.S.P.R. 480, ¶ 14 (2012). If an administrative judge determines
that an appellant has failed to satisfy the knowledge/timing test, she should
consider other evidence, such as (1) evidence pertaining to the strength or
weakness of the agency’s reasons for taking the personnel action; (2) whether the16
whistleblowing was personally directed at the proposing or deciding officials; and
(3) whether these individuals had a desire or motive to retaliate against the
appellant. Id., ¶ 15. Any weight given to the whistleblowing disclosure, either
alone or in combination with other factors, can satisfy the contributing factor
standard. Id.
Regarding the appellant’s placement on paid administrative leave on
April 12, 2017, the administrative judge only considered whether the appellant’s
2015 OIG hotline complaint was a contributing factor to her placement on
administrative leave, given that the appellant’s protected disclosures occurred
after this date. ID at 24. The administrative judge found that the two relevant
agency officials involved in this personnel action, including the Facilities
Manager, lacked knowledge of the appellant’s 2015 OIG complaint. Id. In
reaching this finding, the administrative judge explicitly considered their
testimony and found their denials of knowledge of the complaint to be credible.
Id. We discern no basis for disturbing the administrative judge’s credibility
findings on this issue.9 See Haebe v. Department of Justice , 288 F.3d 1288, 1301
(Fed. Cir. 2002) (holding that the Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing).
However, upon finding that the appellant did not establish contributing
factor under the knowledge/timing test, the administrative judge should have
proceeded to consider other evidence, including the factors identified in Dorney,
9 The administrative judge did not explicitly address whether the agency officials in
question may have had constructive knowledge of the appellant’s 2015 OIG complaint,
even though they lacked actual knowledge. See Dorney, 117 M.S.P.R. 480, ¶¶ 11-13
(finding that the administrative judge erred in holding that the deciding official must
have actual knowledge of an individual’s whistleblowing activities in order to support a
finding of contributing factor). However, to the extent the administrative judge may
have erred on this point, the error was harmless, as there is nothing in the record to
suggest that the officials were influenced by an individual with actual knowledge of the
2015 OIG complaint. See Panter, 22 M.S.P.R. at 282 (holding that an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision). 17
to determine whether the appellant satisfied the contributing factor standard by
other means. See Dorney, 117 M.S.P.R. 480, ¶ 15. The administrative judge did
not conduct such an analysis before concluding that the appellant failed to meet
her burden of proof. ID at 24. Accordingly, we conduct that inquiry now.
First, we consider Dorney factor (1), evidence pertaining to the strength or
weakness of the agency’s reasons for taking the personnel action. The record
reflects that the agency placed the appellant on administrative leave pending
an investigation into a coworker’s allegations that the appellant created a hostile
work environment and caused her to fear for her safety. HCD (testimony of
Facilities Manager and Administrative Officer); IAF, Tab 15 at 32. Although the
agency’s investigation ultimately determined that the appellant was not a physical
threat to the coworker in question, HCD (testimony of Administrative Officer),
we find that the agency had reasonable grounds for placing the appellant on
administrative leave in the interim. Regarding factor (2), the appellant did not
establish what disclosures she made to OIG in 2015, and hence there is no
evidence that her disclosures were directed at either of the responsible agency
officials. As to factor (3), given that the two agency officials lacked knowledge,
whether actual or constructive, of the 2015 OIG complaint, they could not have
had a desire or motive to retaliate against the appellant on that basis.
Accordingly, we find that the appellant failed to show that her 2015 OIG
complaint was a contributing factor in the agency’s decision to place her on
administrative leave.
We next consider whether the appellant established that her 2015 OIG
complaint was a contributing factor in the March 2017 reprimand which, as
discussed above, we consider for the first time on review as a distinct personnel
action. The March 2017 letter of reprimand was also issued by the Facilities
Manager, whom the administrative judge found lacked knowledge of the
appellant’s 2015 OIG complaint. ID at 24; IAF, Tab 9 at 75-77. Because the
administrative judge found, grounded upon her demeanor-based credibility18
determinations, that the Facilities Manager did not have actual knowledge of the
appellant’s OIG complaint, and there is nothing in the record to suggest that
he had constructive knowledge of the complaint, we find that the appellant did
not establish contributing factor under the knowledge/timing test. Accordingly,
we will consider whether other evidence might support a finding that the
appellant’s 2015 OIG complaint was a contributing factor in the letter of
reprimand. See Dorney, 117 M.S.P.R. 480, ¶ 15. Regarding Dorney factor (1),
the strength of the evidence for the reasons for the agency’s action, the letter of
reprimand lists numerous acts of alleged disrespectful conduct and failure to
follow instructions. IAF, Tab 9 at 75-77. The appellant generally denies those
allegations. IAF, Tab 15 at 16. However, even assuming the letter of reprimand
was not warranted, we have found no evidence that the Facilities Manager was a
target of the appellant’s 2015 OIG complaint or had actual or constructive
knowledge of it. Under these circumstances, factors (2) and (3) weigh decisively
against a finding of contributing factor.
Concerning the administrative judge’s findings on contributing factor
regarding the remaining personnel actions, we discern no basis for disturbing the
administrative judge’s determinations that the relevant agency officials involved
in these personnel actions had the requisite knowledge of the appellant’s
protected activities and/or disclosures. See Crosby, 74 M.S.P.R. 98, 105-06
(finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (same).
The administrative judge correctly found that the agency met its burden of proof
by clear and convincing evidence.
In determining whether an agency has met its burden, the Board will
consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on19
the part of the agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Carr, 185 F.3d at 1323.
The Board does not view these factors as discrete elements, each of which the
agency must prove by clear and convincing evidence. Rather, the Board will
weigh the factors together to determine whether the evidence is clear and
convincing as a whole. See, e.g., Yunus v. Department of Veterans Affairs ,
84 M.S.P.R. 78, ¶ 27 (1999), aff’d, 242 F.3d 1367 (Fed. Cir. 2001). In Whitmore
v. Department of Labor , 680 F.3d 1353 (Fed. Cir. 2012), the U.S. Court of
Appeals for the Federal Circuit clarified that “[e]vidence only clearly and
convincingly supports a conclusion when it does so in the aggregate considering
all the pertinent evidence in the record, and despite the evidence that fairly
detracts from that conclusion.” Id. at 1368. The court further stated that “[i]t is
error for the [Board] to not evaluate all the pertinent evidence in determining
whether an element of a claim or defense has been proven adequately.” Id.
The agency met its burden regarding the appellant’s office moves.
Here, regarding the appellant’s office moves on October 3, 2017, and then
on May 3, 2018, the administrative judge found that the agency presented strong
evidence in support of the moves. ID at 29. The administrative judge noted that
another employee had filed a workplace violence complaint against the appellant,
and that, following the appellant’s return to work after an investigation into the
complaint, leadership decided that the appellant could perform her duties in
another office, and that it would be better to return her to another office. Id.
According to the agency, the appellant’s second office move occurred after the
agency ran out of space in the first location. ID at 29-30. In assessing Carr
factor one, the administrative judge considered both documentary evidence and
relevant witness testimony, including the Administrative Officer’s testimony that
there had been increased concerns about workplace safety and that he therefore
took the workplace violence complaint that had been filed against the appellant20
very seriously. ID at 29. We discern no reason for disturbing these findings on
review.
Concerning Carr factor two, the administrative judge found that the
Facilities Manager and Administrative Officer who were involved in the office
moves did not have a strong motive to retaliate. ID at 30-31. Citing to Hillen,
35 M.S.P.R. at 458, the administrative judge found the Facilities Manager to be
straightforward and direct in denying retaliatory motive. ID at 32. The
administrative judge noted that the Facilities Manager was candid, direct, and
upfront in acknowledging his own shortcomings, stating that the appellant
sometimes was correct and that he was counseled on his own performance
deficiencies. ID at 30-31. Similarly, the administrative judge found that the
motive to retaliate by the Administrative Officer was not strong, finding in
relevant part that his testimony was straightforward and direct in denying
retaliatory motive. ID at 33.
On review, the appellant appears to dispute the administrative judge’s
credibility findings regarding the issue of the Facilities Manager’s and
Administrative Officer’s retaliatory motive. PFR File, Tab 1 at 16-17. We
discern no basis for overturning the administrative judge’s determination that the
Facilities Manager and Administrative Officer testified in a candid and
straightforward manner. See Haebe, 288 F.3d at 1301. Nonetheless, we believe
that the record reflects that the relevant agency officials had some motive to
retaliate, and we modify the initial decision accordingly. In Robinson v.
Department of Veterans Affairs , 923 F.3d 1004, 1019 (Fed. Cir. 2019), the
Federal Circuit found that the Board must look at whether there is a
“professional” motive to retaliate, i.e., whether the disclosure reflected poorly on
the agency or agency component. Here, the appellant’s protected disclosures and
activity, which occurred prior to the office moves, reflected poorly both on the
Facilities Manager and the agency as a whole given that the appellant alleged that
the Facilities Manager had endangered the safety of agency employees and raised21
concerns about procurement practices. IAF, Tab 15 at 20-24, 26-31, 34-39,
Tab 28 at 82.
Regarding Carr factor three, the administrative judge noted that the agency
did not present evidence on this factor, which weighed against the agency. ID
at 32. The Federal Circuit has held that “the absence of any evidence relating to
Carr factor three can effectively remove that factor from the analysis,” but that
the failure to produce evidence, if it exists, “may be at the agency’s peril” and
may cause the agency to fail to meet its clear and convincing burden. Whitmore,
680 F.3d at 1374. Here, we find that the absence of any such evidence cannot
weigh in favor of the agency. See Siler v. Environmental Protection Agency ,
908 F.3d 1291, 1299 (Fed. Cir. 2018). Balancing the three Carr factors, and in
light of the strong evidence that the agency presented in support of the appellant’s
office moves, we agree with the administrative judge that the agency met its
burden of proving that it would have moved the appellant to different offices in
the absence of her protected whistleblowing.
The agency met its burden regarding the appellant’s 3-day
suspension in January 2019.
After considering documentary evidence and witness testimony, including
that of the deciding official on the suspension and the Administrative Officer, the
administrative judge found that the agency presented strong evidence in support
of the 3-day suspension. ID at 33-35. As previously discussed, the suspension
was based on the appellant’s purported failure to pay UPS invoices. IAF, Tab 11
at 41-43. While the appellant contends on review that the instruction to pay the
UPS invoices would have required her to violate a law, rule, or regulation, as we
found above, any such assertion is unavailing. PFR File, Tab 1 at 8, 15.
The administrative judge found that the deciding official on the 3 -day
suspension and the Administrative Officer, who was also involved in the issuance
of the suspension, did not have a strong retaliatory motive. ID at 35. In relevant
part, the administrative judge found that the deciding official on the suspension22
provided undisputed testimony that he did not know the appellant personally, had
no knowledge of the appellant’s specific complaints, and was not individually
named in the appellant’s complaint. Citing to Hillen, the administrative judge
further found the deciding official’s denial of any retaliatory motive to be
credible. ID at 35. However, focusing narrowly on the motive of individual
managers is insufficient. See Robinson, 923 F.3d at 1019. Consistent with our
analysis pertaining to the appellant’s office moves, we modify the analysis of
Carr factor 2 to find that agency officials had some motive to retaliate given that
the appellant’s protected whistleblowing activity reflected poorly upon the
agency as a whole. See id.
Concerning Carr factor three, the administrative judge found the deciding
official testified that he suspended other employees who are not whistleblowers,
and that his testimony on this issue is undisputed. After weighing the three Carr
factors, we agree with the administrative judge that the agency met its burden of
proof regarding this personnel action.
The agency proved that it would have proposed the appellant’s
removal and removed her despite the appellant’s protected
whistleblowing.
As set forth above, on September 16, 2019, the Administrative Officer
issued the appellant a notice of proposed removal based on the following two
charges: (1) failure to maintain procurement authority; and (2) failure to follow
instructions. IAF, Tab 7 at 15-19. On October 22, 2019, the deciding official,
who was the Associate Executive Director, sustained the removal. IAF, Tab 11
at 12-15. The administrative judge thoroughly considered record evidence and
the testimonies of the Administrative Officer and Associate Executive Director in
determining that the agency presented strong evidence in support of appellant’s
proposed removal and removal. ID at 35-37. The appellant alleges on review
that the agency lacked a justification for removing her, arguing that she would
have violated a law, rule, or regulation by following instructions to pay UPS23
invoices, and asserting that she was progressing on her procurement training.
PFR File, Tab 1 at 15, 25. We have already found that the appellant’s assertion
that she would have violated a regulation by paying the UPS invoices is
unavailing. Regarding her assertion that she was advancing in the completion of
her training requirements, the administrative judge considered this argument and
put weight on the testimony of agency officials explaining that the appellant had
ample opportunities to complete the training. ID at 35-37. We thus discern no
basis for overturning the administrative judge’s findings on Carr factor one.
Concerning Carr factor two, the administrative judge found that the
primary motive of the Administrative Officer and Associate Executive Director in
taking the removal action was concern over the appellant’s failure to complete
training requirements and her delay in paying UPS invoices. ID at 37. The
administrative judge found both witnesses to be credible in their denial of
harboring a retaliatory motive towards the appellant. ID at 37-38. Consistent
with our analysis above regarding the other personnel actions at issue, we modify
the initial decision to reflect that, because the appellant’s protected
whistleblowing reflected poorly on the agency as a whole, the Administrative
Officer and Associate Executive Director nonetheless harbored some retaliatory
motive. See Robinson, 923 F.3d at 1019.
Finally, the administrative judge noted that the agency presented evidence
concerning the third Carr factor; specifically, that procurement authority was
revoked for other employees who did not complete the 80-hour training
requirement. ID at 38. The administrative judge noted that, according to
an agency witness, two of the individuals were ultimately able to complete the
training within several months after the revocation, and a third employee went on
medical leave. ID at 38-39. The administrative judge concluded that the third
Carr factor either weighed slightly in favor of the agency or was neutral.
ID at 39. Even if the third factor was considered neutral, we agree with the
administrative judge that the agency met its burden of proving by clear and24
convincing evidence that it would have removed the appellant despite her
whistleblowing.
In light of the above, the administrative judge correctly denied the
appellant corrective action.
NOTICE OF APPEAL RIGHTS10
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
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
10 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.25
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file26
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 27
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “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 competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 28
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.29 | Serrano_VeronicaDA-1221-20-0121-W-1_Final_Order.pdf | 2024-08-29 | VERONICA SERRANO v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-1221-20-0121-W-1, August 29, 2024 | DA-1221-20-0121-W-1 | NP |
594 | https://www.mspb.gov/decisions/nonprecedential/McGinn_ThomasDC-1221-22-0231-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS MCGINN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DC-1221-22-0231-W-1
DATE: August 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mick G. Harrison , Esquire, Bloomington, Indiana, for the appellant.
Michelle L. Perry , Esquire, and Kelly Ann Taddonio , Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The agency has filed a petition for review of the initial decision, which
dismissed the appellant’s individual right of action (IRA) appeal without
prejudice subject to automatic refiling on April 25, 2023, and to allow the parties
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
additional time to complete discovery. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We
FORWARD this matter to the regional office for docketing and adjudication as a
refiled appeal.
¶2On review, the agency contests the portion of the initial decision in which
the administrative judge denied its motion to dismiss the appeal as untimely
filed.2 Under 5 U.S.C. § 1214(a)(3)(A), an appellant may file an IRA appeal with
the Board once the Office of Special Counsel (OSC) closes its investigation into
his complaint and no more than 60 days have elapsed since notification of the
closure was provided to him. Under the Board’s regulations implementing that
statutory time limit, an IRA appeal must be filed no later than 65 days after the
2 In addition to setting forth the bases for dismissing this appeal without prejudice to
refiling, the initial decision denied the agency’s motion to dismiss the appeal as
untimely filed. Initial Appeal File, Tab 63 at 6-10. We address this argument raised by
the agency on review because it contends that the initial decision was incorrectly
decided in part. See 5 C.F.R. § 1201.114(a)(1). However, administrative judges should
carefully consider whether to rule on motions within initial decisions that dismiss
appeals without prejudice to refiling, as opposed to doing so in separate orders, because
such rulings in initial decisions may become the subject of a party’s petition for review.2
date OSC issues its close-out letter or, if the letter is received more than 5 days
after its issuance, within 60 days of the date of receipt. 5 C.F.R. § 1209.5(a)(1).
¶3The record reflects that, following the closure of the appellant’s first
complaint (MA-21-000440), OSC accepted a second complaint based on the same
claims and resumed its investigation under a new case number (MA-22-000234).
Initial Appeal File, Tab 1 at 17-18, Tab 42 at 62-63. The Board has held that
OSC’s acceptance of an appellant’s new complaint and issuance of a new
close-out letter after it previously issued a close-out letter in the matter creates a
new statutory filing period. Kalus v. Department of Homeland Security ,
123 M.S.P.R. 226, ¶ 9 (2016). Here, because the appellant filed his appeal within
65 days after OSC’s close-out letter in his second complaint, his appeal was
timely filed. See id.
¶4The agency seeks to distinguish Kalus on the grounds that the appellant in
that case submitted new evidence to OSC that resulted in the reopening of his
claims. In response, the appellant maintains that he likewise submitted new
evidence in support of his claims, which resulted in OSC instructing him to file
his second complaint. It is unnecessary to resolve this dispute or speculate as to
why OSC chose to reinvestigate the appellant’s claims under a new complaint
number. As stated in Kalus, the Board will accept OSC’s decision to reopen at
face value, absent egregious circumstances evidencing an abuse of process. Id.,
¶ 10. Such circumstances are not present here.
¶5Accordingly, we affirm the initial decision. Because the automatic refiling
date imposed by the administrative judge has now passed, the condition set forth
by the administrative judge for automatic refiling in this case has occurred, and
we forward this matter to the regional office for docketing as a refiled appeal and
adjudication. 3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | McGinn_ThomasDC-1221-22-0231-W-1_Final_Order.pdf | 2024-08-29 | THOMAS MCGINN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DC-1221-22-0231-W-1, August 29, 2024 | DC-1221-22-0231-W-1 | NP |
595 | https://www.mspb.gov/decisions/nonprecedential/Donahue_MatthewDC-1221-22-0483-W-2_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW G. DONAHUE,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DC-1221-22-0483-W-2
DATE: August 29, 2024
THIS ORDER IS NONPRECEDENTIAL1
Robert Feitel , Esquire, Washington, D.C., for the appellant.
Kaymi Ross and Jill McCann , Esquire, Springfield, Virginia, for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, VACATE the initial decision, and REMAND the case to the Atlanta
Regional Office2 for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The appellant filed the instant IRA appeal, alleging that the agency engaged
in whistleblower reprisal by directing his reassignment. Donahue v. Department
of Justice, MSPB Docket No. DC-1221-22-0483-W-1, Initial Appeal File (IAF),
Tab 9 at 10-11. The administrative judge developed the record and held the
requested hearing before denying the request for corrective action. Donahue v.
Department of Justice , MSPB Docket No. DC -1221-22-0483-W-2, Appeal File
(W-2 AF), Tab 38, Initial Decision (ID). The following facts, as further detailed
in the record and initial decision, appear to be undisputed.
¶3The appellant began working for the agency’s Drug Enforcement
Administration (DEA) in 1991. W-2 AF, Tab 34-9, Hearing Transcript (HT) at 9.
He was subject to a mobility agreement and changes to his duty station. W-2 AF,
Tab 27 at 17. Throughout the appellant’s career, he held numerous roles with
ever increasing responsibilities, such as ones in Philadelphia, New York City,
Barranquilla, Colombia, Bogota, Colombia, San Juan, Puerto Rico, and Mexico
City, Mexico. W-2 AF, Tab 23 at 6-8; HT at 11-24. During the latter stages of
his career, the appellant became the Deputy Chief of Operations for Foreign
Operations, stationed in Chantilly, Virginia. W-2 AF, Tab 25 at 19; HT at 24-25.
¶4While in this latest role, the appellant made the March 2021 disclosure
underlying his claim of whistleblower reprisal. W-2 AF, Tab 25 at 23-24. The
appellant informed the agency’s Office of Professional Responsibility (OPR) that
one of his Senior Executive Service subordinates, the Mexico Regional Director,
engaged in misconduct by traveling to Miami, Florida, to meet with criminal
defense attorneys. Id. According to the appellant, this subordinate did so over
2 This appeal was reassigned from the Board’s Washington Regional Office to the
Atlanta Regional Office and was adjudicated by an administrative judge from that
office.2
the appellant’s explicit instructions and despite the appearance of impropriety,
since those attorneys represented potential targets of DEA investigations. Id.
Soon thereafter, the agency detailed the Mexico Regional Director to a different
position as OPR began investigating. Id.; ID at 3.
¶5In June 2021, the United States Senate confirmed a new DEA
Administrator. HT at 126-27; ID at 3. A couple of months after that, in August
2021, a new Principal Deputy Administrator (PDA) joined the agency, as well.
HT at 128; ID at 3. These new agency leaders made several personnel changes at
the highest levels of the DEA, including one involving the appellant.
HT at 106-07, 215-25; IAF, Tab 14 at 50-52; ID at 3.
¶6In October 2021, the PDA notified the appellant that he would be reassigned
to the position of Regional Director for the Andean Region, at an office in
Bogota, Colombia. W-2 AF, Tab 26 at 25, Tab 27 at 7-8. This was an office in
which he had previously worked for several years, in roles that included both
Assistant Regional Director and Acting Regional Director. W-2 AF, Tab 27
at 7-8; HT at 12, 15-17; PFR File, Tab 1 at 8. The letter informing the appellant
of his reassignment stated that the appellant was the best person to replace the
outgoing Regional Director, who was retiring, given the appellant’s expertise and
prior experience in the region. W-2 AF, Tab 26 at 25.
¶7Days after notification of this directed reassignment, the appellant filed a
complaint with the Office of Special Counsel (OSC), alleging that the
reassignment was reprisal for his whistleblowing disclosure. IAF, Tab 1 at 5,
Tab 9 at 16-25. Among other things, the appellant alleged that his reassignment
by the PDA may be reprisal because the appellant’s whistleblowing implicated a
longtime colleague and friend of both the PDA and the Chief of Operations who
worked directly under the PDA. IAF, Tab 9 at 7-8, 20; HT at 54-56. Around the
time of his OSC complaint, the appellant’s attorney also wrote to the PDA raising
various other concerns, such as one about whether the reassignment amounted to3
a demotion, the need for refresher language training, and questions about the
appellant’s physical safety in Colombia. W-2 AF, Tab 27 at 7-8.
¶8Over the ensuing months, the new PDA and Administrator proposed and
then sustained the removal of the Mexico Regional Director, i.e., the individual
identified in the appellant’s disclosure as having engaged in misconduct. IAF,
Tab 14 at 57-67; W-2 AF, Tab 27 at 26. Throughout this same time, the agency
also took steps to prepare for the appellant’s reassignment to Colombia. W-2 AF,
Tab 27 at 7-8, Tab 14 at 79, Tab 29 at 36; ID at 4-5. However, in May 2022, the
appellant informed the agency that he would retire that month rather than accept
the directed reassignment to Colombia. W-2 AF, Tab 29 at 138-39; ID at 5.
During this same period, OSC terminated its inquiry into the appellant’s
allegations of whistleblower reprisal, and this appeal followed. IAF, Tab 1, Tab 9
at 26-27.
¶9The administrative judge developed the record and held the requested
hearing before issuing an initial decision that denied corrective action. She found
that the appellant’s disclosure about his subordinate’s misconduct was protected.
ID at 7-9. She also found that the appellant established the contributing factor
criterion because the PDA who reassigned him in October 2021 had knowledge of
the appellant’s March 2021 disclosure. ID at 9-10. However, upon shifting the
burden of proof, the administrative judge found that the agency proved by clear
and convincing evidence that it would have taken the same action in the absence
of the appellant’s whistleblowing. ID at 10-11. She reasoned that the strength of
the agency’s evidence in support of the action, any motive to retaliate, and
evidence about similarly situated nonwhistleblowers all weighed in the agency’s
favor. ID at 12-19.
¶10The appellant filed a petition for review. Donahue v. Department of
Justice, MSPB Docket No. DC-1221-22-0483-W-2, Petition for Review (PFR)
File, Tab 1. The agency filed a response, PFR File, Tab 6, and the appellant
replied, PFR File, Tab 9.4
¶11On review, the appellant argues, among other things, that the administrative
judge made a prejudicial error pertaining to discovery. PFR File, Tab 1 at 10-15.
In particular, the appellant repeatedly moved to compel the production of
additional evidence because he believed the agency’s discovery responses were
incomplete, but the administrative judge denied the same on multiple occasions.
Id. We find that the circumstances warrant a remand for further proceedings.
¶12In a September 2022 discovery request, the appellant sought all documents
concerning the agency’s decision to reassign him and implementation of the
same. W-2 AF, Tab 9 at 7-8 n.2, Tab 14 at 22-24. Although we need not recount
it in full, the appellant’s discovery request described several specific agency
computer systems and applications where records related to his reassignment
would likely be found. W-2 AF, Tab 9 at 7-8 n.2, Tab 14 at 22-24. Soon after
this discovery request, the administrative judge dismissed the appeal without
prejudice, for automatic refiling in February 2023. IAF, Tab 17; W-2 AF, Tab 1.
According to the appellant, the agency responded to his discovery request in
November 2022, with just 10 pages of emails and text messages, all of which
were communications between the appellant and the PDA. W-2 AF, Tab 9 at 7-8;
PFR File, Tab 1 at 10.
¶13In March 2023, the appellant notified the agency that its discovery response
appeared to be incomplete because he had been provided “virtually no emails,
text messages, or other communications” about the decision to reassign him and
implementation of the same. W-2 AF, Tab 9 at 15, Tab 14 at 9. To illustrate his
concern, the appellant provided the agency with a couple of emails that he had
obtained elsewhere, indicating that they should have been included in the
agency’s discovery response. W-2 AF, Tab 9 at 15, 17-24. In the months that
followed, between March and June 2023, the appellant repeatedly pressed the
agency for more information about the completeness of its discovery response,
along with notice that he would file a motion to compel, if need be. W-2 AF,
Tab 13 at 10-11, 13, Tab 14 at 9-20. Agency counsel eventually advised the5
appellant that he had personally searched again and found no additional materials.
W-2 AF, Tab 13 at 10-11, 13, Tab 14 at 9-20.
¶14In June 2023, the appellant filed the motion to compel he had warned of,
recounting the ongoing discovery dispute. W-2 AF, Tab 9. He requested “an
Order requiring the production of all relevant documents . . . and a mechanism to
verify the thoroughness of the search and the accuracy of the result.” Id. at 12.
The agency responded, arguing that the motion to compel was untimely because
the appellant filed the motion on the day prehearing submissions were due and
after the period for discovery had ended. W-2 AF, Tab 13 at 6-7. Agency
counsel further asserted that it had already provided all relevant documents within
its possession. Id. at 7-8. While doing so, the agency suggested that the emails
the appellant had discovered on his own, i.e., the ones he identified as
establishing that the agency’s discovery response was incomplete, were not
records in the agency’s possession because the author of the emails had retired
the year before.3 Id. at 7 n.2. The appellant replied. W-2 AF, Tab 14. Among
other things, he provided a detailed explanation of the systems that should have
been searched; described why agency counsel’s claim to have searched himself
seemed implausible, given the agency’s security protocols; and asked the
administrative judge to designate an agency employee with the necessary access
to both search the identified systems and provide a sworn certification about
doing so. Id. at 5-6.
3 Agency counsel’s assertion contained little detail and was at least partially inaccurate.
The emails were between two agency officials—the Executive Assistant to the Deputy
Chief of Operations and the Acting Section Chief. W-2 AF, Tab 9 at 18-20. The
former sent the first email, and the latter responded with the second email. Id.
Therefore, it was inaccurate for agency counsel to assert that the Acting Section Chief
authored both. W-2 AF, Tab 13 at 7. And while it is plausible that the agency lost
access to the Acting Section Chief’s emails less than a year after his retirement, agency
counsel did not identify any associated record retention policy or otherwise explain the
loss. Agency counsel also did not explain why the retirement of one party to an email
between two agency officials would preclude the agency from locating those emails
through the other party’s email account. 6
¶15The administrative judge denied the appellant’s motion to compel. She was
not persuaded by his arguments and assertions about the sufficiency of the
agency’s search. W-2 AF, Tab 15 at 1-2. However, that same day, the agency
appointed a new attorney to this appeal. W-2 AF, Tab 16. This new agency
counsel acknowledged the discovery dispute to date, including the appellant’s
specific arguments about the prior agency counsel’s representations and his
access to records. W-2 AF, Tab 18 at 4. She indicated that she had already
begun to further review the matter and the agency’s document production. Id.
A couple of weeks later, in July 2023, the agency acknowledged that it had
uncovered approximately 70 additional records in response to the appellant’s
original discovery request. W-2 AF, Tab 19 at 4.
¶16Armed with these additional records and the implicit acknowledgment that
the agency’s earlier discovery responses had been incomplete, the appellant
immediately sought to depose those responsible for the agency’s searches. W-2
AF, Tab 20 at 8-9. He also sought associated documentation that would show,
inter alia, the scope of the search and the databases searched. Id. The agency
objected. Id. at 12-13. Therefore, the appellant filed a July 2023 motion to
compel. Id. at 4-5. The agency filed a response in opposition, W-2 AF, Tab 21
at 5-7, and attached the most recent set of 70 records it had located, id. at 17-153.
The administrative judge denied the appellant’s motion to compel, deciding that
the request for deposition was not reasonably calculated to lead to the discovery
of admissible evidence, as required by 5 C.F.R. § 1201.72. W-2 AF, Tab 22.
¶17During the August 2023 hearing, this topic came up once more as the
appellant took testimony from the PDA. When asked, the PDA acknowledged
that he sometimes used text messages to communicate with other senior leaders.
HT at 304. When further asked whether he sent any text messages about the
appellant’s reassignment, the PDA stated, “I’m sure that there were texts about
the acceptance or the timing or, I’m sure that there were some texts about that.”
Id. at 305. In response to a follow-up, he stated, “I don’t know what I would7
have texted about, about his reassignment.” Id. at 307. At that point, the
appellant renewed his discovery motions, arguing that no such text messages were
included in the agency’s discovery responses. Id. at 307-08. The administrative
judge denied the renewed motions.4 Id. at 308-10. The appellant continued to
object to all of these rulings in his closing brief. W-2 AF, Tab 36 at 5 n.1.
¶18The appellant’s petition for review recounts this timeline of events and,
among other things, argues that the administrative judge erred in her
discovery-related rulings. PFR File, Tab 1 at 10-15. He also submits two sworn
statements, dated after the initial decision, from recently retired agency officials.5
Id. at 24-26, 28-29.
¶19The first of these newly submitted sworn statements is from the former
Associate Deputy Assistant Administrator. Id. at 24-26. This individual
describes having personal familiarity with the agency’s records systems and its
processes for seeking records for litigation purposes. Id. at 24-25. She further
4 In denying the renewed motions, the administrative judge seemed to rely, at least in
part, on agency counsel’s representation that some text messages had been provided to
the appellant during discovery and that they were included in the record. HT at 308-10.
However, appellant’s counsel asserted that the only text messages provided were
between the appellant and the PDA, i.e., not between the PDA and any other agency
official. Id. Agency counsel did not indicate otherwise and did not identify where text
messages might be found in the record. Id. In the agency’s response to the appellant’s
petition for review, it once again refers to these text messages in the record, without
identifying where the Board might find them. PFR File, Tab 6 at 11 n.2. Nevertheless,
we found a handful of text messages in an agency pleading, which seem to be between
the appellant and the PDA. IAF, Tab 14 at 11, 96-99.
5 The appellant asserted that these officials were unwilling to speak with him previously
due to fear of reprisal. PFR File, Tab 1 at 12. But the sworn statements are silent about
the matter. Id. at 24-26, 28-29. Nevertheless, in furtherance of his assertion about
them fearing reprisal, the appellant indicated that both individuals retired after the
initial decision was issued. Id. at 12. The agency, however, stated that they retired in
the two months before the initial decision was issued. PFR File, Tab 6 at 15 n.4.
Neither party submitted any evidence about the matter. If the agency’s dates are to be
believed, both retirements happened before the hearing and initial decision in this
appeal. Compare id., with W-2 AF, Tab 15. However, both retirements occurred after
the administrative judge denied the appellant’s first motion to compel, and one of the
retirements happened just 2 days before the appellant’s prehearing submission deadline.
Compare PFR File, Tab 6 at 15 n.4, with W-2 AF, Tab 15 at 2.8
describes how the agency’s searches for emails as it related to the appellant were
“unusually limited.” Id. at 25. Among other things, she asserts that the searches
excluded the period leading up to the appellant’s directed reassignment and
excluded the senior agency officials who would have been involved in the
decision.6 Id.
¶20The second sworn statement included in the appellant’s petition is from the
former Deputy Chief Inspector of the agency’s OPR. Id. at 28-29. He similarly
describes having personal familiarity with the agency’s records systems and
processes for seeking records for litigation purposes. Id. at 28. He further
describes why he had reason to believe that the agency had not conducted a
complete search for records in this appeal and how he contacted an Office of
Inspector General investigator about the same in June 2023. Id. at 28-29.
¶21In the agency’s response to the appellant’s petition, it continues to assert
that the appellant’s June 2023 motion to compel was untimely. PFR File, Tab 6
at 14. The agency also asserts that the administrative judge correctly denied that
motion, the July 2023 motion to compel, and the motion to compel made at the
hearing on the merits. Id. at 14-18. In addition, the agency argues that the Board
should not consider the sworn statements attached to the appellant’s petition
because the appellant has not shown that the information contained in those
statements was previously unavailable. Id. at 15.
ANALYSIS
¶22Discovery is the process by which a party may obtain relevant information
from another person or a party that the other person or party has not otherwise
provided. Chandler v. Department of the Treasury , 120 M.S.P.R. 163, ¶ 10
(2013); 5 C.F.R. § 1201.72(a). Relevant information includes information that
6 The sworn statement and the appellant’s arguments both indicate that a screenshot
relevant to the agency’s search is attached to the sworn statement, PFR File, Tab 1
at 13, 26, but we see no such attachment. The agency’s response to the petition notes
the same and indicates that the agency had reached out to the appellant, seeking the
screenshot, to no avail. PFR File, Tab 6 at 15 n.3.9
appears reasonably calculated to lead to the discovery of admissible evidence.
Chandler, 120 M.S.P.R. 163, ¶ 10; 5 C.F.R. § 1201.72(a). The parties are
expected to start and complete discovery with minimal intervention from the
Board. McClenning v Department of the Army , 2022 MSPB 3, ¶ 19; 5 C.F.R.
§ 1201.71.
¶23In the event of a discovery dispute, the Board’s regulations contemplate a
prompt motion to compel. 5 C.F.R. § 1201.73(d)(3) (providing that any motion
for an order to compel or issue a subpoena must be filed with the judge within
10 days of the date of service of objections or, if no response is received, within
10 days after the time limit for response has expired). However, the Board’s
regulations also require that the parties attempt to resolve any discovery dispute
before filing a motion to compel. 5 C.F.R. § 1201.73(c)(1) (providing that,
before filing any motion to compel or issue a subpoena, the moving party shall
discuss the anticipated motion with the opposing party or nonparty, and all those
involved shall make a good faith effort to resolve the discovery dispute and
narrow the areas of disagreement).
¶24To the extent that the agency has argued that the appellant’s June 2023
motion to compel was untimely, we disagree for a few reasons. First, the agency
has acknowledged November 7, 2022, as the date of its initial discovery response.
PFR File, Tab 6 at 14. However, this was during the October 2022 to February
2023 period in which the appeal was dismissed without prejudice. IAF, Tab 17;
W-2 AF, Tab 1. That dismissal did not provide any instructions about how the
parties should proceed in the event of a discovery dispute during the dismissal
period. IAF, Tab 17. In addition, the record before us suggests that the
appellant’s delay in filing a motion to compel was partially attributable to the
agency’s delays in responding to the appellant’s efforts to resolve the matter
independent of the administrative judge. W-2 AF, Tab 13 at 10-11, 13, Tab 14
at 9-20. Also contributing to the delay in filing his motion to compel was that the
motion did not stem from any agency objection to his discovery request. It10
instead stemmed from, inter alia, the appellant uncovering specific emails that the
agency did not provide as part of its discovery response. Finally, we note that the
agency’s argument about the timeliness of the appellant’s June 2023 motion to
compel is silent about the fact that the agency implicitly acknowledged, after the
motion was filed, that it should have turned over an additional 70 records with its
initial discovery response. For all these reasons, we are not persuaded by the
agency’s arguments about the timeliness of the appellant’s first motion to compel.
¶25Looking more broadly at the appellant’s numerous efforts to ensure that the
agency’s discovery responses were complete, including multiple motions to
compel, we recognize that an administrative judge has broad discretion in ruling
on discovery matters. Dieter v. Department of Veterans Affairs , 2022 MSPB 32,
¶ 25. The Board will not find reversible error in such rulings absent an abuse of
discretion. Id. Nevertheless, we find that the circumstances in this appeal
warrant a remand.
¶26We are struck by the fact that the appellant repeatedly detailed the records
sought, including the computer systems and applications where they would likely
be found, along with associated security protocols. IAF, Tab 9 at 7-8 n.2. To
illustrate, the appellant sought records relating to the decision to reassign him,
such as ones that might be found within certain specified email domain names,
messaging applications such as WhatsApp or Signal, archived hard drives, and
other agency record storage systems such as “Capstone, Jabber, and Kraft
communications.” W-2 AF, Tab 9 at 7-8 n.2, Tab 14 at 22-23.
¶27Meanwhile, the agency’s correspondence with the appellant and its
pleadings submitted into the record included only vague assertions that agency
counsel searched for discoverable materials. W-2 AF, Tab 13 at 7, 13. For
example, during email correspondence between the parties about these issues,
agency counsel referred to his own personal “search [and] re-search on the
documents requested.” Id. at 13. In subsequent correspondence, agency counsel
once again stated that the “[a]gency has gone back and reviewed and re-searched11
its files for any additional relevant materials.” Id. at 10. The agency’s pleading
in response to the appellant’s first motion to compel similarly describes its
searches in general terms. Id. at 4, 7. None describe details such as the systems
and applications searched, search terms used, or date limitations. This continued
to be the case, even after the appellant identified some emails that were missing
from the agency’s discovery response, despite the appellant articulating why he
had reason to believe that agency counsel may not have had access to certain
agency systems, and despite the appellant repeatedly asking for more information
about the agency’s searches to ensure their completeness. W-2 AF, Tab 14 at 5-6,
9. Then, agency counsel turned over an additional 70 records, implicitly
acknowledging that its original discovery response was incomplete, without any
explanation for why they were not turned over earlier, and still without
identifying the kinds of searches that had been conducted to obtain discoverable
records. W-2 AF, Tab 19 at 4, Tab 20 at 8-9, 12-13, Tab 21 at 5-6.
¶28Regarding the sworn statements the appellant attaches to his petition for
review, the agency is correct to note that the appellant did not submit them below.
PFR File, Tab 6 at 15. The Board generally will not consider evidence submitted
for the first time on review absent a showing that the documents and the
information contained in the documents were unavailable before the record closed
despite due diligence, and that the evidence is of sufficient weight to warrant an
outcome different from that of the initial decision. Skarada v. Department of
Veterans Affairs , 2022 MSPB 17, ¶ 5 n.1. However, we exercise our discretion to
consider the appellant’s newly submitted evidence in this appeal. Compare
5 C.F.R. § 1201.115(d) (recognizing that the Board may grant a petition for
review in the case of new and material evidence if the information contained in
that evidence was previously unavailable), with 5 C.F.R. § 1201.115(e)
(providing that the Board nevertheless reserves the authority to consider any issue
before it). We do so because of the particular facts and circumstances at issue.
This includes the appellant’s diligent efforts to ensure that the agency had12
complied with its discovery obligations below, the agency’s documented failure
to do so at least once before, and the newly submitted evidence’s suggestion that
the agency improperly thwarted the appellant’s efforts to pursue this case.7 Even
if we did not consider the sworn statements attached to the appellant’s petition,
we would reach the same result.
¶29In sum, we find that the administrative judge abused her discretion in
denying the appellant’s June 2023 motion to compel, we vacate the initial
decision, and we remand the case for further proceedings. W-2 AF, Tab 9 at 12,
Tab 14 at 22-24. On remand, the administrative judge must order compliance
with the appellant’s discovery request insofar as he sought records about (1) the
2021 decision to transfer him from Chantilly, Virginia, to Bogota, Colombia and
(2) the implementation of the same. IAF, Tab 9 at 7-8, Tab 14 at 23. During the
remand proceedings, the agency must submit a sworn statement by an individual
with knowledge of the search efforts and the agency systems and applications
involved to demonstrate the completeness of its searches for discoverable
materials. The statement must, at a minimum, identify the search parameters, the
systems and applications searched, the search terms, and the time frames
searched. The administrative judge must then determine whether the agency’s
searches were sufficient and, if necessary, order a more complete search. If no
further support for the appellant’s theory of his case is found, the administrative
judge may issue a remand initial decision based on the existing record.8 See
7 At their core, these sworn statements suggest that the agency did not conduct proper
discovery searches. However, we note that one also describes the agency’s email
retention policy as requiring the retention of emails from all employees for three years
and the permanent retention of emails from senior employees. PFR File, Tab 1 at 24.
This is in stark contrast to original agency counsel’s suggestion that his 2022 search
could not uncover the November 2021 emails in which an Acting Section Chief was the
author or recipient due to his December 2021 retirement. Compare W-2 AF, Tab 13
at 7 n.2, with W-2 AF, Tab 9 at 18-21.
8 The appellant identified another distinct discovery dispute. He recently uncovered a
May 2022 decision by an Equal Employment Opportunity Commission (EEOC) judge in
an unrelated case which found the PDA’s testimony not credible and further found him
to be an official responsible for the agency’s discrimination and reprisal. PFR File,13
Baird v. Department of the Army , 517 F.3d 1345, 1351 (Fed. Cir. 2008)
(providing comparable instructions after finding that an administrative judge
should have granted an appellant’s motion to compel due to the employing
agency’s “lax attitude towards compliance with . . . discovery requests”). On the
other hand, if additional support for the appellant’s theory of reprisal is
uncovered due to renewed search efforts by the agency, the administrative judge
must offer the appellant a supplemental hearing. Id. In either case, the
administrative judge must conclude by issuing a remand initial decision in which
she may incorporate prior findings to the extent that doing so is warranted.9
Tab 1 at 31-45. According to the appellant, the agency should have produced this in
response to an interrogatory and when discussing the matter at the hearing. Compare
PFR File, Tab 6 at 195-96 (interrogatory regarding “any investigations and/or
complaints filed” against those involved in the appellant’s reassignment, along with the
agency’s response that there were none involving the PDA), and HT at 210-212 (agency
counsel indicating that the PDA had no prior discipline), with PFR File, Tab 1 at 31-45
(EEOC decision). The agency disagrees and argues that the Board should not consider
this evidence submitted for the first time on review. PFR File, Tab 6 at 19-20
(referencing 5 C.F.R. § 1201.115(d)). Because we are remanding this appeal for further
discovery proceedings, the administrative judge should consider what significance, if
any, the decision in an unrelated case has on this case. See Semenov v. Department of
Veterans Affairs, 2023 MSPB 16, ¶ 34 (exercising the Board’s discretion to instruct an
administrative judge to permit new arguments and evidence about a new claim
presented for the first time on review when the appeal was already being remanded for
other reasons); 5 C.F.R. § 1201.115(e).
9 Because we are remanding the appeal for further proceedings, it would be premature
for us to consider the appellant’s arguments about whether the administrative judge
correctly determined that the agency rebutted his prima facie case of reprisal. PFR File,
Tab 1 at 15-21.14
ORDER
¶30For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.15 | Donahue_MatthewDC-1221-22-0483-W-2_Remand_Order.pdf | 2024-08-29 | MATTHEW G. DONAHUE v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-1221-22-0483-W-2, August 29, 2024 | DC-1221-22-0483-W-2 | NP |
596 | https://www.mspb.gov/decisions/nonprecedential/Jackson-Hardin_Adonnay_C_DC-315H-21-0034-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ADONNAY C. JACKSON-HARDIN,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-315H-21-0034-I-1
DATE: August 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Donnie Mason , Portsmouth, Virginia, for the appellant.
Karissa Getz , Norfolk, Virginia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his probationary termination for lack of Board
jurisdiction. On petition for review, the appellant, a registered e-filer at the time,
asserts that he did not receive an email indicating that the administrative judge
had issued a show cause order instructing him to respond to the jurisdictional
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case 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).
issue presented by the appeal of his probationary termination and therefore he
was unaware of the information being requested until he received the initial
decision dismissing his appeal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Jackson-Hardin_Adonnay_C_DC-315H-21-0034-I-1_Final_Order.pdf | 2024-08-29 | null | DC-315H-21-0034-I-1 | NP |
597 | https://www.mspb.gov/decisions/nonprecedential/Thomas_Carrie_N_DC-0752-21-0311-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CARRIE NICOLE THOMAS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-21-0311-I-2
DATE: August 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Carrie Nicole Thomas , Madison Heights, Virginia, pro se.
Javier L. Martinez , Esquire, Indian Head, Maryland, for the agency.
Steven Lippman , Esquire, Washington Navy Yard, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed her indefinite suspension. 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).
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
The agency indefinitely suspended the appellant, who works as a
NH-IV-0501 Financial Management Analyst with the agency’s Naval Sea
Systems Command (NAVSEA), for failure to maintain a condition of employment
after NAVSEA suspended the appellant’s access to classified information and
assignment to a sensitive position. Thomas v. Department of the Navy , MSPB
Docket No. DC-0752-21-0311-I-1, Initial Appeal File (IAF), Tab 1 at 1, 9-10,
Tab 16 at 18-21. The appellant appealed her indefinite suspension to the Board,
alleging harmful error, discrimination, and reprisal. IAF, Tab 1 at 5-6.
After holding the requested hearing, the administrative judge issued an initial
decision affirming the agency’s action, finding that the appellant failed to prove
that the agency committed harmful procedural error and, to the extent that the
administrative judge was able to consider part of the appellant’s discrimination
claim regarding the agency’s decision to indefinitely suspend her instead of
reassign her, which did not implicate the security clearance determination
itself, that the appellant failed to establish her affirmative defense of
discrimination or reprisal. Thomas v. Department of the Navy , MSPB Docket No.
DC-0752-21-0311-I-2, Appeal File (I-2 AF), Tab 19, Initial Decision (ID).
The initial decision, issued on January 20, 2022, informed the appellant that any
petition for review must be filed with the Board by February 24, 2022, or, if the
appellant proved that she received the initial decision more than 5 days after the
date it was issued, that she could file a petition for review within 30 days of the
date that she received the initial decision. ID at 1, 15.
The appellant filed a petition for review via the e-Appeal system on
February 25, 2022 at 3:54 a.m. Petition for Review (PFR) File, Tab 1. E-Appeal
informed the appellant that her petition appeared to be untimely filed and2
provided her with notice of how to establish good cause for the untimely filing.
Id. at 3. On March 7, 2022, the Clerk of the Board also issued
an acknowledgement letter informing the appellant that her petition for review
appeared to be untimely filed and affording her the opportunity to file a motion to
accept the filing as timely and/or waive the time limit for good cause. PFR File,
Tab 2 at 2. On March 22, 2022, the appellant filed a motion to waive the time
limit for good cause, alleging that her mental health disability affected her ability
to meet the filing deadline and submitting two letters from medical providers to
that effect. PFR File, Tab 3. The agency has filed a response arguing that the
appellant’s petition for review fails to meet the standards for obtaining review.
PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s regulations require that a petition for review must be filed
within 35 days after the issuance of the initial decision, or, if the petitioner shows
that she received the initial decision more than 5 days after the date of the
issuance, within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). The appellant states that she does not know when she received a
copy of the initial decision. PFR File, Tab 1 at 3. However, the appellant elected
to register as an e-filer at the inception of her appeal and the Board’s regulations
provide that pleadings and Board documents served electronically on registered
e-filers are deemed received on the date of electronic submission. See IAF, Tab 1
at 2; 5 C.F.R. § 1201.14(m)(2) (2022). When a statute or regulation “deems”
something to have been done, the event is considered to have occurred whether or
not it actually did. Rivera v. Social Security Administration , 111 M.S.P.R. 581,
584 (2009) (citing Lima v. Department of the Air Force , 101 M.S.P.R. 64, ¶ 5
(2006)). Thus, we deem the appellant to have received the initial decision on
January 20, 2022 and, therefore, her petition for review filed on
February 25, 2022 was untimely. See 5 C.F.R. § 1201.14(m)(1) (2022) (providing3
that the date of filing for an electronic submission via e-Appeal is the date of
electronic submission).
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g).
To establish good cause for the untimely filing of an appeal, a party must show
that she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980). To determine whether an appellant has shown good cause,
the Board will consider the length of the delay, the reasonableness of her excuse
and her showing of due diligence, whether she is proceeding pro se, and whether
she has presented evidence of the existence of circumstances beyond her control
that affected her ability to comply with the time limits or of unavoidable casualty
or misfortune which similarly shows a causal relationship to her inability to
timely file her petition. Moorman v. Department of the Army , 68 M.S.P.R. 60,
62–63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Here, the appellant filed her petition for review almost 4 hours after the
February 24, 2022 deadline set forth in the initial decision. ID at 15; PFR File,
Tab 1. In response to the e-Appeal prompt informing her that her petition
appeared to be untimely, the appellant stated that she had difficulties trying to
upload the file because the directions were not clear. PFR File, Tab 1 at 3. She
also stated that she spent an hour trying to upload her document and asserted “I
am 13 minutes late. Please consider this as timely, this was purely an oversight
on my behalf of how to post this document.” Id. We do not find that either
assertion shows good cause for waiving the filing deadline.
The initial decision explicitly informed the appellant that her petition for
review had to be filed on or before February 24, 2022, or the initial decision
would become final. ID at 15. Only under limited circumstances will the Board
excuse delays in filing caused by difficulties encountered with e -Appeal.
Palermo v. Department of the Navy , 120 M.S.P.R. 694, ¶ 5 (2014). Further, an4
appellant’s confusion and lack of sophistication, which contribute to a late filing,
may be taken into account when determining whether good cause for a late filing
exists. Forst v. Office of Personnel Management , 97 M.S.P.R. 142, ¶ 7 (2004).
However, an appellant must show that such confusion is related to a specific
ambiguity in either the instructions she received or in a Board procedure. Id.
The Board has held that when an appellant delays the filing of her petition for
review until the eleventh hour, the appellant bears the risk that unforeseen
circumstances could prevent the timely filing of her petition. See Baker v.
Department of Justice , 41 M.S.P.R. 25, 27 (1989). We do not find that the
appellant has sufficiently explained how her confusion related to a specific
ambiguity in either the instructions she received or in a Board procedure. See
Forst, 97 M.S.P.R. 142, ¶ 7. There is also no evidence in the record that the
appellant attempted to pursue alternate means to timely file her petition. See
5 C.F.R. § 1201.14(f) (2022) (“A party or representative who has registered as an
e-filer may file any pleading by non-electronic means, i.e., via postal mail, fax, or
personal or commercial delivery.”). Although the delay here was minimal, and
the appellant is pro se, the Board has consistently denied a waiver of its filing
deadline in cases where the delay was minimal and the appellant failed to show
good cause. See, e.g., Noble v. U.S. Postal Service , 73 M.S.P.R. 59, 62–63
(1997).
In the appellant’s motion to waive the time limit for good cause,
she additionally contends that good cause exists for her untimely filing because
she has mental health conditions, the hearing took a heavy toll on her mental
status, and she found it very difficult to concentrate in order to respond to the
initial decision. PFR File, Tab 3 at 4. To establish that an untimely filing was
the result of an illness, the party must: (1) identify the time period during which
she suffered from the illness; (2) submit medical evidence showing that
she suffered from the alleged illness during that time period; and (3) explain how
the illness prevented her from timely filing her appeal or a request for5
an extension of time. Lacy v. Department of the Navy , 78 M.S.P.R. 434, 437
(1998). To establish good cause for waiver of the Board’s filing deadline based
on physical or mental illness, there is no general incapacitation requirement;
rather, the appellant is required to explain only why her alleged illness impaired
her ability to meet the Board’s filing deadline or seek an extension of time.
Id. at 437 n.*.
Here, the appellant submitted a letter from her clinical psychologist dated
March 1, 2022, stating that she has been engaged in mental health treatment since
May 2020 for specific concerns detailed in the letter. PFR File, Tab 3 at 6.
Although the appellant’s psychologist notes that at this time the appellant reports
persistent mental health symptoms, which include motivation and concentration
difficulty, he also states that during her treatment she has completed steps to
manage legal and financial stressors, has met her basic needs, and has attended
healthcare appointments. Id. The appellant also submitted a letter from another
medical provider dated January 20, 2022, which states that the appellant is being
treated for the same conditions noted by the clinical psychologist and “continues
to struggle with [those conditions] despite current treatments.” Id. at 7.
Although the March 2022 letter from the appellant’s psychologist indicates
that she was suffering from mental health symptoms during the time period after
the initial decision was issued and before her petition for review was due, neither
the appellant nor either letter explains how these mental health symptoms
prevented her from timely filing her appeal or requesting an extension of time.
See Lacy, 78 M.S.P.R. at 437; PFR File, Tab 3 at 6-7. In fact, the appellant’s
psychologist stated that during the appellant’s treatment, which includes the
relevant time period, she has completed steps to manage legal stressors. PFR
File, Tab 3 at 6. Therefore, we find that the appellant has failed to establish good
cause for her filing delay based on illness. Cf. Le Master v. Department of
Veterans Affairs , 79 M.S.P.R. 680, ¶¶ 9–10 (1998) (good cause shown where the
appellant’s psychologist explained that the cognitive aspects of the appellant’s6
major depression rendered him unable to appreciate and probably unable to
remember the filing deadline); Earl v. Department of the Army , 79 M.S.P.R. 194,
¶ 9 (1998) (finding good cause for the filing delay where the medical evidence
explained that the appellant’s depression, among other things, caused deficiencies
in concentration, persistence, and pace that resulted in a failure to complete tasks
in a timely manner).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the indefinite suspension appeal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 you8
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (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. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Thomas_Carrie_N_DC-0752-21-0311-I-2_Final_Order.pdf | 2024-08-29 | CARRIE NICOLE THOMAS v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-21-0311-I-2, August 29, 2024 | DC-0752-21-0311-I-2 | NP |
598 | https://www.mspb.gov/decisions/nonprecedential/Sterling_Kimberly_D_DA-315H-23-0093-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KIMBERLY D. STERLING,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DA-315H-23-0093-I-1
DATE: August 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kimberly D. Sterling , Baton Rouge, Louisiana, pro se.
Kacy Coble , Esquire, and Tijuana Griffin , North Little Rock, Arkansas, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed the appeal of her termination during her probationary period for lack of
jurisdiction. For the reasons set forth below, the appellant’s petition for review is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
The administrative judge issued an initial decision on January 19, 2023,
dismissing the appellant’s appeal for lack of jurisdiction. Initial Appeal File
(IAF), Tab 7, Initial Decision (ID). The initial decision advised the appellant that
the deadline to file a petition for review was February 23, 2023, and provided
information as to how to file a petition for review. ID at 5-9. The initial decision
was sent to the appellant at her address of record, an apartment building in Baton
Rouge, Louisiana, via U.S. Mail, on the date of issuance. IAF, Tab 8.
On March 21, 2023, the appellant filed a petition for review, arguing that
she did not receive the initial decision until February 28, 2023, because she lost
her mailbox key, had to request a new one be made, and the replacement mailbox
key was received by her apartment complex manager on February 19, 2023.
Petition for Review (PFR) File, Tab 1 at 1 . The appellant’s petition for review
was not made under oath or penalty of perjury. Id.
The Acting Clerk of the Board acknowledged the Board’s receipt of the
petition for review and advised the appellant that it was filed after the February
23, 2023, deadline, and that the Board’s regulations require that a petition for
review that appears to be untimely filed be accompanied by a motion to accept the
filing as timely and/or to waive the time limit for good cause. PFR File, Tab 2
at 1-2. The notice also informed the appellant that the motion must include either
(1) a statement, signed under penalty of perjury, or (2) an affidavit, a sworn
statement taken before a notary public or similarly authorized official. Id. at 2.
Finally, the notice included a sample motion for the appellant’s use. Id. at 7. The
appellant did not respond to this notice.2
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). It is the appellant’s burden of proof, by a preponderance of the
evidence, to establish the timeliness of her petition for review. 5 C.F.R.
§ 1201.56(b)(2)(B); see McPherson v. Department of the Treasury, 104 M.S.P.R.
547, ¶ 4 (2007).
As discussed above, the appellant’s petition for review was filed after the
deadline date and the appellant’s explanation of a lost mailbox key was not made
in an affidavit or under penalty of perjury and the appellant did not respond to the
Acting Clerk’s notice affording her an opportunity to provide an explanation in
such a form. PFR File, Tabs 1-2. The Board has held that when a party’s
explanation for the untimeliness of a pleading is not submitted in the form of an
affidavit or a statement made under penalty of perjury, it is insufficient to
establish the assertions it contains. Strausbaugh v. Government Printing Office ,
117 M.S.P.R. 566, ¶ 10 (2012); Cantrell v. U.S. Postal Service , 32 M.S.P.R. 248,
250 (1987); see Palermo v. Department of the Navy , 120 M.S.P.R. 694, ¶ 9 (2014)
(stating that an untimely petition for review must be accompanied by a motion
containing an affidavit or sworn statement). Thus, the appellant’s explanation in
her petition for review is insufficient to establish her assertions regarding receipt
of the initial decision.
In any event, as also discussed above, the certificate of service confirms
that the initial decision, dated January 19, 2023, was sent to the appellant’s
address of record via U.S. Mail. IAF, Tab 8. Correspondence which is properly
addressed and sent to the appellant’s address via postal or commercial delivery is
presumed to have been duly delivered to the addressee in 5 days. Cabarloc v.
Department of Veterans Affairs , 110 M.S.P.R. 695, ¶ 7 (2009); Williamson v. U.S.3
Postal Service, 106 M.S.P.R. 502, ¶ 7 (2007); 5 C.F.R. § 1201.4( l). While the
presumption of delivery may be overcome, an appellant may not avoid service of
a properly addressed and mailed initial decision by intentional or negligent
conduct which frustrates actual service. 5 C.F.R. §§ 1201.114(e), 1201.22(b)(3);
see Little v. U.S. Postal Service, 124 M.S.P.R. 183, ¶¶ 8-9 (2017); Marcantel v.
Department of Energy, 121 M.S.P.R. 330, ¶¶ 5-8 (2014). Here, the appellant’s
assertions on review, even if accepted as true, fail to show that the loss of the
mailbox key was not the result of negligence on her part that frustrated actual
service of the initial decision. Accordingly, we find that the appellant has not
shown that she did not receive the initial decision in a timely fashion.
As the appellant filed her petition for review late, the issue is whether she
established good cause to waive the time limit. The Board will waive a petition
for review filing deadline only upon a showing of good cause for the delay in
filing. 5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing of
a petition, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Rivera v. Social Security
Administration, 111 M.S.P.R. 581, ¶ 4 (2009) (citing Alonzo v. Department of the
Air Force, 4 M.S.P.R. 180, 184 (1980)). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of her excuse and her showing of due diligence, whether she is
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control which affected her ability to comply with the
time limits or of unavoidable casualty or misfortune which similarly shows a
causal relationship to her inability to timely file her petition. Rivera,
111 M.S.P.R. 581, ¶ 4 (citing Moorman v. Department of the Army, 68 M.S.P.R.
60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table)).
As mentioned, the deadline to file a petition for review was February 23,
2023, and the appellant did not file her petition until March 21, 2023, 26 days
late. The appellant has not established good cause for her delay in filing.4
Although we recognize that the appellant is acting in a pro se capacity, a 26-day
filing delay is significant. See Crook v. U.S. Postal Service , 108 M.S.P.R. 553,
¶ 6 (finding that a 1-month filing delay was significant), aff’d, 301 F. App’x 982
(Fed. Cir. 2008); Blankenship v. Department of Veterans Affairs , 98 M.S.P.R.
641, ¶ 7 (2005) (finding a 25-day filing delay significant). The appellant has not
offered a persuasive excuse, shown that she acted with diligence, or set forth
evidence of circumstances beyond her control that affected her ability to comply
with the filing deadline. While the appellant alleges that she needed assistance
acquiring a new mailbox key, she has not asserted when she lost her mailbox key
so we cannot determine if she lost it before the initial decision arrived in her
mailbox. PFR File, Tab 1 at 1. Furthermore, because she has not explained the
circumstances surrounding the loss of the key, her attempts to locate it, and the
details of her efforts to obtain a replacement key, we cannot determine if she
suffered from circumstances beyond her control that affected her ability to timely
file. Id.
Moreover, the appellant’s allegations still include several unexplained
delays. Despite acknowledging receipt of the initial decision on February 28,
2023, the appellant did not file her petition for review until more than 3 weeks
later, on March 21, 2023. Id. Similarly, she has not explained the delay between
the date she asserts the replacement key was sent to her apartment manager,
February 19, 2023, and the date she claims to have received the initial decision,
February 28, 2023. Id. Overall, we find that the appellant’s actions fail to
demonstrate ordinary prudence or due diligence. Therefore, we find no basis to
waive the time limit for the appellant’s petition for review.
Accordingly, we dismiss the appellant’s petition for review as untimely
filed without good cause shown. This is the final decision of the Merit Systems
Protection Board regarding the timeliness of the petition for review. The initial
decision remains the final decision of the Board regarding the appellant’s appeal
of her termination. 5
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Sterling_Kimberly_D_DA-315H-23-0093-I-1_Final_Order.pdf | 2024-08-29 | KIMBERLY D. STERLING v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DA-315H-23-0093-I-1, August 29, 2024 | DA-315H-23-0093-I-1 | NP |
599 | https://www.mspb.gov/decisions/nonprecedential/Bowne_William_H_PH-0841-20-0437-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM H. BOWNE, III,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0841-20-0437-I-1
DATE: August 29, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
William H. Bowne, III , Monrovia, Maryland, pro se.
Michael Shipley , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review, and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
It is well established that if the Office of Personnel Management (OPM)
completely rescinds a final decision, its rescission divests the Board of
jurisdiction over the appeal in which that decision is at issue, and the appeal must
be dismissed. Rorick v. Office of Personnel Management , 109 M.S.P.R. 597, ¶ 5
(2008). Here, the appellant questions OPM’s motivations for requesting the
dismissal of his appeal, but he does not challenge the accuracy of its statement
that it has rescinded the final decision it issued on August 1, 2020. Thus, the
appeal must be dismissed for lack of jurisdiction. Id.
Rescission of an OPM final decision can result in the issue on appeal being
rendered moot. Id., ¶ 6. However, for an appeal to be deemed moot, the
appellant must have received all of the relief he could have received if the matter
had been adjudicated and he had prevailed. Id. Here, the issues on appeal are not
moot, as the appellant asserts that he is still receiving an underpayment of his
retirement benefit, and OPM has indicated that it intends to issue a new final
decision concerning the appellant’s retirement calculation.
If appellant disagrees with OPM’s new final decision, he may file a new
appeal of that decision with the appropriate Board regional office. Id., ¶ 7. Any2
future appeal must be filed within the time limits set forth in the Board’s
regulations. See 5 C.F.R. § 1201.22.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any4
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Bowne_William_H_PH-0841-20-0437-I-1_Final_Order.pdf | 2024-08-29 | null | PH-0841-20-0437-I-1 | NP |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.