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600	https://www.mspb.gov/decisions/nonprecedential/Ervin_Michael_W_SF-0752-17-0722-X-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL W. ERVIN, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER SF-0752-17-0722-X-1 DATE: August 29, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mary DiGioia , Bellflower, California, for the appellant. Catherine V. Meek , Long Beach, California, for the agency. Roderick Eves , St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1This compliance proceeding was initiated by the appellant’s petition for enforcement of the Board’s December 3, 2018 final decision in Ervin v. United States Postal Service , MSPB Docket No. SF-0752-17-0722-I-1. On May 10, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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). 2019, the administrative judge issued a compliance initial decision finding the agency not in compliance with the Board’s December 3, 2018 final decision. Ervin v. United States Postal Service , MSPB Docket No. SF-0752-17-0722-C-1, Compliance Initial Decision (CID) at 4 (May 10, 2019); Compliance File (CF), Tab 5. For the reasons discussed below, and notwithstanding the agency’s egregious failure to respond to the Board’s orders and otherwise cooperate in resolving this case, we find the agency in compliance and DISMISS the petition for enforcement . DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE ¶2On September 25, 2017, the appellant appealed his removal from the position of Manager, Customer Service. Ervin v. United States Postal Service , MSPB Docket No. SF-0752-17-0722-I-1, Initial Appeal File (IAF), Tab 1. On December 3, 2018, the administrative judge issued an initial decision mitigating the appellant’s removal to a demotion to the position of Supervisor, Customer Service. Ervin v. United States Postal Service , MSPB Docket No. SF-0752-17- 0722-I-1, Initial Decision (ID) at 14 (Dec. 13, 2018); IAF, Tab 30. The administrative judge ordered the agency to cancel the appellant’s removal and substitute in its place a demotion to the position of Supervisor, Customer Service; and to pay the appellant the appropriate amount of back pay, with interest, as well as adjusting the appellant’s benefits with appropriate credits and deductions. ID at 14-15. That initial decision became the final decision of the Board on January 7, 2019, after neither party petitioned the full Board for review. ID at 16-17. ¶3On March 18, 2019, the appellant filed a petition for enforcement of the Board’s order, alleging that the agency had not yet returned him to work. CF, Tab 1 at 3. On May 10, 2019, the administrative judge issued an initial decision granting the petition for enforcement because the agency failed to demonstrate that it cancelled the appellant’s removal; placed him in a Supervisor position; or2 paid him back pay, interest, and benefits. CID at 4. The administrative judge again ordered the agency to: (1) cancel the removal and substitute in its place a demotion to the position of Supervisor, Customer Service; (2) pay the appellant the correct amount of back pay, interest, and benefits; and (3) inform the Board in writing of all actions taken to comply with the Board’s order and the date on which it believed it had fully complied. As neither party filed any submission with the Clerk of the Board within the time limit set forth in 5 C.F.R. § 1201.114, the administrative judge’s findings of noncompliance have become final, and the appellant’s petition for enforcement has been referred to the Board for a final decision on compliance pursuant to 5 C.F.R. § 1201.183(c).2 See 5 C.F.R. § 1201.183(b). On June 21, 2019, the Board issued an acknowledgement order requiring the agency to file evidence of compliance. Ervin v. United States Postal Service, MSPB Docket No. SF-0752-17-0722-X-1, Compliance Referral File (CRF), Tab 1. ¶4On July 9, 2019, the agency filed its response, in which it stated that it believed there was no need to cancel the appellant’s removal because the removal was never actually effectuated due to the appellant’s intervening resignation. CRF, Tab 3 at 4. The agency further stated that it reactivated the appellant’s employment and placed him into a position as Supervisor, Customer Service, at the Pico Rivera Post Office, where he reported for the first time on June 24, 2019. Id. The agency finally stated that, for the agency to be able to complete the back 2 As noted in the compliance initial decision, the Board’s regulations provide that, upon a finding of noncompliance, the party found to be in noncompliance must do the following: (i) To the extent that the party decides to take the actions required by the initial decision, the party must submit to the Clerk of the Board, within the time limit for filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that the party has taken the actions identified in the initial decision, along with evidence establishing that the party has taken those actions; and/or (ii) To the extent that the party decides not to take all of the actions required by the initial decision, the party must file a petition for review under the provisions of 5 C.F.R. §§ 1201.114-1201.115. 5 C.F.R. § 1201.183(a)(6). 3 pay requirement, the appellant needed to complete the agency’s back pay forms addressing outside employment and other sources of income. Id. at 5. ¶5On July 22, 2019, the appellant responded to the agency’s proof of compliance. CRF, Tab 4. The appellant asserted that his new assignment was farther from his home than his original position, although similar vacant positions existed in his original facility. CRF, Tab 4 at 11. The appellant further stated that he had submitted the requisite back pay forms to the agency on July 1, 2019. Id. ¶6On June 19, 2020, the Clerk of the Board issued an order stating that further evidence from the agency was required before the Board could make a determination on compliance. CRF, Tab 5 at 2-3. The Clerk of the Board noted that, as of the date of the Order, the agency had not yet submitted any evidence demonstrating that all back pay funds had been paid to the appellant, provided any explanation as to how it chose the appellant’s new position, or stated whether it cancelled the PS Form 50 reflecting the appellant’s retirement, as required by the Board’s final order. Id. The Clerk of the Board directed the agency to inform the Board whether all back pay funds had been paid to the appellant, and if the agency claimed that the back pay funds had been paid, the agency’s submission was required to include full details of the back pay calculations and a narrative summary of the payments. Id. The Clerk of the Board further directed the agency to state whether it had cancelled the petitioner’s retirement PS Form 50, inform the Board regarding how it chose the appellant’s new position, including the location, and explain why the appellant was not returned to his original work location. Id. ¶7On April 23, 2021, the Clerk of the Board issued another order due to the agency’s failure to respond to the June 19, 2020 Order. CRF, Tab 6. The April 23 Order repeated the June 19, 2020 directive to the agency, and also warned the agency that failure to submit the required information may lead to the issuance of sanctions against the responsible agency official pursuant to 5 U.S.C.4 § 1204(e)(2)(A) and 5 C.F.R. § 1201.183(c). Id. at 2. The agency provided no response to the April 23, 2021 Order. ¶8On September 28, 2022, the Board issued an order to show cause due to the agency’s failure to respond to the April 23, 2021 Order. CRF, Tab 9. The Board ordered the agency to submit evidence of compliance and further ordered Ms. Cynthia Garcia, the agency management official identified as responsible for ensuring the agency’s compliance, to show cause why the Board should not impose sanctions for the agency’s noncompliance. Id. at 4. ¶9On December 13, 2023, after multiple attempts by the Board’s Office of General Counsel to contact the representative who appeared throughout this proceeding, Ms. Catherine Meek,3 the agency finally submitted what it deemed its “Notice of Compliance.” CRF, Tab 12. In its submission, the agency asserted that it believed it was in compliance with the Board’s December 3, 2018 Order with respect to appellant’s return to employment, but also stated that it was still researching whether the appellant had been paid all back pay. Id. at 4-6. The agency did not, however, respond to the Clerk’s order that the agency show cause why Ms. Cynthia Garcia should not be sanctioned for the agency’s failure to respond to previous orders. Id. ¶10After the agency filed its December 13, 2023 submission, the Board’s Office of General Counsel again made multiple attempts to contact agency counsel regarding the agency’s efforts at further compliance, and again failed to receive a substantive response from agency counsel demonstrating that the agency was attempting to reach full compliance. The Board thus issued another order to show cause, requiring the agency to show why it should not be sanctioned for its failure to comply with the Board’s December 3, 2018 Order. CRF, Tab 13. ¶11On March 18, 2024, the agency finally submitted a substantive pleading that included evidence of its attempts to reach compliance. CRF, Tab 14. The agency 3 The second agency representative, Mr. Roderick Eves, joined the proceeding only in March 2024, after the Board’s Office of General Counsel contacted him for assistance in getting the agency to respond to the Board’s orders.5 apologized for the delay, explaining that staff turnover and structural changes led to a significant delay in its responses. Id. at 3-19. The agency explained that it had paid all back pay owed to the appellant on November 5, 2019, and included in the pleading a detailed explanation of the back pay calculations. Id. ¶12The agency supplemented that pleading with a second pleading on April 6, 2024, in which it explained that the agency official previously designated to ensure compliance actually left her position in 2021 due to a reduction in force (though she did not retire from the agency until April 2024). CRF, Tab 15. The agency did not explain why it took 3 years to inform the Board of this event or why it did not fulfill its obligation to provide current information for the agency official designated to ensure compliance, despite the Board’s multiple orders and reminders to do so. ¶13On April 23, 2024, the appellant responded to the agency’s March 18, 2024 response. CRF, Tab 16. In his response, the appellant only asserted that he had not yet received any response from the agency to the March 15, 2024 Order to Show Cause. Id. at 4. ¶14On April 25, 2024, the agency responded to the appellant’s April 23, 2024 pleading. CRF, Tab 17. The agency argued that, as an e-filer, the appellant should have received all of its submissions via e-Appeal. Id. at 3. The agency also stated that it served the appellant’s designated representative with copies of all of its pleadings via mail. Id. ¶15On May 7, 2024, the appellant filed a response to the agency’s April 23, 2024 pleading. CRF, Tab 18. In the pleading, the appellant only included a generic statement that the agency had not yet complied with the Board’s orders. Id. ANALYSIS ¶16When the Board finds a personnel action unwarranted or not sustainable, it orders that the appellant be placed, as nearly as possible, in the situation she6 would have been in had the wrongful personnel action not occurred. House v. Department of the Army , 98 M.S.P.R. 530, ¶ 9 (2005). The agency bears the burden to prove its compliance with a Board order. An agency’s assertions of compliance must include a clear explanation of its compliance actions supported by documentary evidence. Vaughan v. Department of Agriculture , 116 M.S.P.R. 319, ¶ 5 (2011). The appellant may rebut the agency’s evidence of compliance by making “specific, nonconclusory, and supported assertions of continued noncompliance.” Brown v. Office of Personnel Management , 113 M.S.P.R. 325, ¶ 5 (2010). ¶17The agency’s outstanding compliance issues were its obligations to: (1) cancel the appellant’s removal and substitute in its place a demotion to the position of Supervisor, Customer Service; and (2) pay the appellant the correct amount of back pay, interest, and benefits. The agency’s combined submissions, while significantly delayed, show that the agency has now reached full compliance. Addressing the cancellation of the appellant’s removal and demotion to a supervisor position, the agency’s submissions demonstrate that the agency has reached compliance with respect to these obligations. The agency provided unrebutted evidence that, because the appellant initially retired shortly after his removal in September 2017, no PS Form 50 was ever entered into his personnel folder reflecting his removal. CRF, Tab 3 at 4-5. The agency further provided evidence that the appellant was placed in a supervisor position, effective June 22, 2019, where he worked until his second retirement in February 2020. CRF, Tab 3 at 4-8, Tab 12 at 4-9. Additionally, in response to the Board’s inquiry as to why he was placed in a separate work location, which was located 23 miles from his previous facility, upon his return to employment, the agency explained that he was placed in his new work location due to a lack of vacancies in his old location, as well as to avoid disruption in the old work location due to the charges against him, which the Board partially sustained. CRF, Tab 3 at 4-8, Tab 12 at 4-9. 7 ¶18Regarding the back pay and interest, the agency’s submissions show that the appellant was paid all back pay and interest owed in November 2019. CRF, Tab 14. The agency included with its submissions the required detailed calculations of its payments. Id. ¶19We would be remiss not to note our profound disappointment in the agency’s failure to cooperate in this case. The agency ignored multiple Board orders, including show cause orders; and the agency representative refused to respond substantively, or frequently at all, to the multiple attempts by the Board’s Office of General Counsel to reach her. This is especially disappointing because the agency representative is a supervising attorney. ¶20The extreme delay in resolving this case rests largely with the agency. Indeed, even now, despite admitting (without apology or explanation) that it submitted woefully outdated information regarding the identity of the agency official charged with compliance, the agency still has not fulfilled its obligation under the Board’s regulations to name its current such official. See 5 C.F.R. § 1201.183(a)(7). ¶21The agency’s extreme lack of cooperation and failure to comply with Board orders are worthy of sanction. However, our case law generally does not permit us to sanction an agency that has complied with its substantive obligations, as the agency has finally done. E.g., Mavronikolas v. U.S. Postal Service , 53 M.S.P.R. 113, 116 (1992), aff’d per curiam , 979 F.2d 216 (Table). Nonetheless, we admonish the agency to take care not to act similarly in other cases. If it does, we may move toward sanctions far earlier in the compliance process. ¶22In light of the agency’s unrebutted evidence of compliance, the Board finds the agency in compliance and dismisses the petition for enforcement. This is the final decision of the Merit Systems Protection Board in this compliance proceeding. Title 5 of the Code of Federal Regulations, section 1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).8 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 Clerk of the Board. 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 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	Ervin_Michael_W_SF-0752-17-0722-X-1_Final_Order.pdf	2024-08-29	MICHAEL W. ERVIN v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-17-0722-X-1, August 29, 2024	SF-0752-17-0722-X-1	NP
601	https://www.mspb.gov/decisions/nonprecedential/Adams_Charles_D_DC-3443-23-0563-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHARLES DERECK ADAMS, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-3443-23-0563-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles Dereck Adams , Herndon, Virginia, pro se. Paul Y. Kim , Esquire, Redstone Arsenal, Alabama, 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 some of his claims for lack of jurisdiction and some of them as barred by the doctrine of res judicata. On petition for review, the appellant argues, among other things, that the Board has jurisdiction over his appeal because his allegations are not frivolous, and the Board has adjudicated discrimination claims 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). in the past. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 2 The appellant has filed several petitions for review in different Board appeals, which the Board will address separately. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 3 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Adams_Charles_D_DC-3443-23-0563-I-1_Final_Order.pdf	2024-08-28	CHARLES DERECK ADAMS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3443-23-0563-I-1, August 28, 2024	DC-3443-23-0563-I-1	NP
602	https://www.mspb.gov/decisions/nonprecedential/Amoako_Kwadwo_O_DC-0752-18-0574-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KWADWO O. AMOAKO, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-0752-18-0574-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Anupa Mukhopadhyay , Esquire, White Plains, Maryland, for the appellant. Stephanie Sneed , Esquire, Bethesda, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which 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 clarify and supplement the administrative judge’s analysis of the appellant’s claim of retaliation for requesting leave under the Family and Medical Leave Act of 1993 (FMLA), we AFFIRM the initial decision. BACKGROUND In May 2018, the agency removed the appellant from his Psychiatric Nurse position based on the following three charges: (1) deficient duty performance (5 specifications); (2) failure to follow instructions (2 specifications); and (3) inappropriate conduct (1 specification). Initial Appeal File (IAF), Tab 8 at 31, 33-34, Tab 18 at 11-13. The appellant timely filed a Board appeal of his removal, and he requested a hearing. IAF, Tab 1 at 1-7, Tab 30, Initial Decision (ID) at 1. He raised the affirmative defenses of discrimination (race, color, and national origin), retaliation for filing a prior equal employment opportunity (EEO) complaint (alleging discrimination based on race, color, and national origin), and retaliation for requesting FMLA leave. IAF, Tab 1 at 13, 23-29, Tab 19 at 5-6, Tab 28 at 5-7. After holding a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. ID at 1, 21. Specifically, she found that the agency proved all of its charges and specifications except for specification 1 of2 the charge of deficient duty performance. ID at 8-15. She further found that the appellant failed to prove his affirmative defenses. ID at 15-18. In addition, she found the existence of nexus between the sustained misconduct and the efficiency of the service and that the penalty of removal is within the bounds of reasonableness. ID at 18-21. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.2 The agency has filed a response. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The appellant does not challenge on review, and we discern no reason to disturb, the administrative judge’s findings that he failed to prove the affirmative defenses of discrimination (race, color, and national origin) and reprisal for engaging in protected EEO activity and that the sustained misconduct has a nexus to the efficiency of the service. PFR File, Tab 1; ID at 15-19. Moreover, we decline to disturb the administrative judge’s well-reasoned and thorough penalty analysis based on the appellant’s mere disagreement with her finding that the penalty of removal is within the bounds of reasonableness.3 PFR File, Tab 1 at 5; ID at 19-21; see Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions). In his petition for review, the appellant asserts that the administrative judge made factually inaccurate statements in the background section of the initial 2 The appellant has included a copy of the initial decision with his petition for review. PFR File, Tab 1 at 7-34. 3 We discern no error in the administrative judge’s discussion of the appellant’s prior suspensions in her penalty analysis when the record reflects that the agency notified the appellant that it was considering them in proposing and deciding his removal. PFR File, Tab 1 at 5; ID at 19-21; IAF, Tab 8 at 33, Tab 18 at 13; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (explaining that an employee’s past disciplinary record is a relevant factor in assessing the appropriateness of an agency-imposed penalty for an employee’s misconduct).3 decision. PFR File, Tab 1 at 2; ID at 1-3. For example, he disputes her description of when he began working in Ward 7 West and when the proposing official assumed the Service Chief position. PFR File, Tab 1 at 2; ID at 1-2. Because the appellant’s assertions of errors concern underlying facts that are immaterial to the outcome of this appeal, we decline to disturb the initial decision on such a basis. See 5 C.F.R. § 1201.115(a)(1). We affirm the administrative judge’s findings that the agency proved its charges. Generally, an agency is required to prove its charges in an adverse action appeal by preponderant evidence.4 5 U.S.C. § 7701(c)(1)(B); Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647, ¶ 11 (2016). For the reasons discussed in the initial decision, we agree with the administrative judge’s findings that the agency proved its charges by preponderant evidence. ID at 8-15. Further, as explained below, we find that the appellant has failed to provide a reason on review to disturb such findings. Specification 1 of the charge of failure to follow instructions alleged that the appellant did not report for a meeting with his supervisor as instructed. IAF, Tab 18 at 12. In sustaining this specification, the administrative judge considered, but found unavailing, the appellant’s arguments that he needed to use the restroom when he was instructed to report for the meeting and that he was entitled to union representation at the meeting. ID at 12-13. We discern no reason to disturb the initial decision based on the appellant’s reassertion of such arguments on review when they were addressed adequately by the administrative judge. PFR File, Tab 1 at 4; ID at 12-13; see Crosby, 74 M.S.P.R. at 106. Specification 3 of the charge of deficient duty performance and specification 2 of the charge of failure to follow instructions concerned the appellant’s alleged on-duty misconduct on August 25-27, and 29 of 2017. IAF, 4 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).4 Tab 18 at 11-13. In sustaining these specifications, the administrative judge relied on the agency’s official time records to establish the appellant’s presence at work on the dates in question. ID at 9-10, 13-14; IAF, Tab 18 at 40. Although she considered the appellant’s testimony that he was not on duty on the relevant dates and that the agency’s time records were doctored, she found that his testimony was not credible based, in part, on his demeanor. ID at 10, 13-14; IAF, Tab 29, Hearing Compact Disc (HCD) (testimony of the appellant). She further found that he failed to present any credible evidence to support his assertion that the agency’s time records were doctored. ID at 10. On review, the appellant reasserts his claim that the agency’s computer-generated time records are fraudulent. PFR File, Tab 2-3. He also questions why the agency did not produce a copy of a schedule and a manual sign-in sheet that allegedly refute the agency’s time records. Id. The appellant’s assertions on review fail to provide a reason to disturb the administrative judge’s demeanor-based credibility findings. ID at 10; see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing). Moreover, in the absence of credible evidence to rebut the agency’s time records, we find that the administrative judge properly relied on such records to prove the appellant’s attendance at work. IAF, Tab 18 at 40; see Hale v. Department of Transportation, Federal Aviation Administration, 772 F.2d 882, 885-86 (Fed. Cir. 1985) (finding that unrebutted time and attendance reports satisfied the preponderance of the evidence standard). To the extent the appellant is attempting to raise a discovery issue, the record reflects that he did not file a motion to compel discovery or a written request for a subpoena to require the production of the alleged schedule or sign-in sheet. See 5 C.F.R. §§ 1201.73(c) (providing that parties may file motions to compel discovery or for the issuance of a subpoena); 1201.81 (providing that parties must5 file requests for subpoenas in writing). Thus, he cannot claim harm on review by the agency’s alleged failure to provide voluntarily certain evidence. See Kinsey v. U.S. Postal Service , 12 M.S.P.R. 503, 505-06 (1982) (finding that the appellant could not claim harm on review by the agency’s refusal to provide voluntarily pertinent documents when he failed to avail himself of the Board’s discovery and subpoena procedures); see also Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005) (finding that the appellant was precluded from raising a discovery issue for the first time on review when he did not file a motion to compel discovery), aff’d, 167 F. App’x 217 (Fed. Cir. 2006) . The appellant next argues on review that the administrative judge ignored the testimony of his witnesses, M.O. and E.A., who he alleges provided testimony relevant to specifications 3 and 5 of the charge of deficient duty performance. PFR File, Tab 1 at 3; IAF, Tab 18 at 11-12, 16. An administrative judge’s 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 & Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In any event, we have reviewed the hearing testimony of the appellant’s witnesses, and we find that it does not provide a reason to disturb the initial decision. In particular, when questioned by the appellant’s representative about certain events related to specifications 3 and 5 of the charge of deficient duty performance, both witnesses testified that they could not remember the details of such events. HCD (testimony of M.O. and E.A.). The appellant further argues on review that he was denied the opportunity to cross-examine the agency’s witnesses, S.L., J.R., and D.S., when they did not appear at the hearing. PFR File, Tab 1 at 4; IAF, Tab 18 at 5-6. The agency stated in its prehearing submission that these witnesses would provide testimony relevant to its charges. IAF, Tab 18 at 5-6. However, the record reflects that the appellant did not request them as witnesses in his prehearing submission, IAF, Tab 19 at 9-10, or object to the administrative judge’s rulings approving them as6 witnesses for the agency only in the Order and Summary of Prehearing Conference, IAF, Tab 28 at 1, 7-8. The record further reflects that the appellant did not file a written request for subpoenas to require the attendance and testimony of the agency’s witnesses or a motion to postpone the hearing to obtain their presence. See 5 C.F.R. §§ 1201.51(c) (providing that a party may file a motion for postponement of the hearing), 1201.81. Because the appellant failed to avail himself of the Board’s procedures that might have led to the appearance of the agency’s witnesses at the hearing, we find no merit to his contention that he was denied the opportunity to cross-examine them. See Dubiel v. U.S. Postal Service, 54 M.S.P.R. 428, 432 (1992) (finding that the appellant failed to show that he was denied a fair hearing when the agency’s approved witnesses did not appear at the hearing and he was not able to cross-examine them); Lohr v. Department of the Air Force , 24 M.S.P.R. 383, 386 (1984) (finding no merit in the appellant’s argument that she was denied the opportunity to cross-examine the agency’s requested witness when the agency elected not to call the witness to testify at the hearing). In addition, the appellant asserts that the administrative judge should not have considered the written statements of S.L., J.R., and D.S. because they constitute hearsay evidence, and he challenges her credibility findings regarding such statements. PFR File, Tab 1 at 4. It is well-settled law that relevant hearsay evidence is admissible in administrative proceedings. Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83 (1981). Here, because the written statements of S.L., J.R., and D.S. are relevant to the agency’s charges, we find that it was within the administrative judge’s discretion to consider them. ID at 4, 8-11; IAF, Tab 8 at 56-57, 62, Tab 18 at 11-13, 26-27. See Tisdell v. Department of the Air Force, 94 M.S.P.R. 44, ¶ 13 (2003) (observing that an administrative judge has wide discretion to receive relevant evidence); 5 C.F.R. § 1201.41(b)(3). Moreover, the administrative judge only relied on S.L.’s written statement in finding that the agency failed to prove specification 1 of the charge of deficient7 duty performance. ID at 8-9; IAF, Tab 8 at 56-57. Thus, we discern no prejudice to the appellant’s substantive rights based on the administrative judge’s reliance on such evidence. 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) . For the following reasons, we find that the administrative judge properly assigned probative value to J.R. and D.S.’s written statements and that such evidence constitutes preponderant evidence under the circumstances. See Kewley v. Department of Health & Human Services , 153 F.3d 1357, 1364 (Fed. Cir. 1998) (observing that hearsay evidence may be accepted as preponderant evidence in Board proceedings, even without corroboration, if the circumstances lend it credence). The Board generally evaluates the probative value of hearsay evidence by considering the following factors: (1) the availability of persons with firsthand knowledge to testify at the hearing; (2) whether the statements of the out-of-court declarants were signed or in affidavit form, and whether anyone witnessed the signing; (3) the agency’s explanation for failing to obtain signed or sworn statements; (4) whether declarants were disinterested witnesses to the events, and whether the statements were routinely made; (5) consistency of declarants’ accounts with other information in the case, internal consistency, and their consistency with each other; (6) whether corroboration for statements can otherwise be found in the agency record; (7) the absence of contradictory evidence; and (8) the credibility of the declarant when he made the statement attributed to him. Borninkhof, 5 M.S.P.R. at 87. Here, in sustaining specification 5 of the charge of deficient duty performance, the administrative judge credited J.R.’s email as contemporaneous to the alleged misconduct. ID at 10-11; IAF, Tab 18 at 12, 26-27. In his email, J.R. described his firsthand experience with the appellant, the Charge Nurse (E.A.), and the patient involved in the alleged incident. IAF, Tab 18 at 12, 26-27. The appellant has not challenged J.R.’s motives or provided any contradictory8 evidence other than his own testimony denying the alleged misconduct. ID at 11; HCD (testimony of the appellant). The appellant has failed to provide a reason to disturb the administrative judge’s demeanor-based finding that such testimony is not credible. ID at 11; see Haebe, 288 F.3d at 1301. Moreover, the appellant has failed to point to any evidence to support his bare assertion that J.R. was not on duty on the night in question and E.A. was not the Charge Nurse. PFR File, Tab 1 at 3. Accordingly, we find that the administrative judge properly relied on J.R.’s email to sustain the specification. See Social Security Administration v. Long, 113 M.S.P.R. 190, ¶¶ 26, 28 (2010) (finding that out -of-court statements were more credible and probative than the respondent’s hearing testimony when, among other things, the statements were contemporaneous with the incident in question and made by disinterested parties), aff’d, 635 F.3d 526 (Fed. Cir. 2011), overruled on other grounds by Department of Health & Human Services v. Jarboe, 2023 MSPB 22. Further, the administrative judge implicitly relied on D.S.’s memorandum in sustaining specification 2 of the charge of failure to follow instructions. ID at 4, 8-9; IAF, Tab 8 at 62. The record reflects that D.S. described her firsthand experience as a Medical Clerk with the appellant in a written memorandum that she digitally signed a few days after the alleged incident. IAF, Tab 8 at 62, Tab 18 at 13. The appellant has not challenged D.S.’s motives or provided any contradictory evidence other than his own testimony that he was not on duty on the date in question. ID at 13-14; HCD (testimony of the appellant). Based on our discussion above, we decline to disturb the administrative judge’s findings that the appellant’s testimony was not credible and that he failed to rebut the agency’s time records establishing his presence at work. ID at 10, 13-14; IAF, Tab 18 at 40. After considering the foregoing factors, we find that D.S.’s memorandum has sufficient reliability to constitute preponderant evidence. See Borninkhof, 5 M.S.P.R. at 87.9 We affirm the administrative judge’s finding that the appellant failed to prove his claim of retaliation for requesting FMLA leave, as modified to clarify and supplement her analysis. The administrative judge analyzed the appellant’s claim of retaliation for requesting FMLA leave as a prohibited personnel practice described in 5 U.S.C. § 2302(b)(9), citing Doe v. U.S. Postal Service , 95 M.S.P.R. 493, ¶ 11 (2004). ID at 17. After the administrative judge issued the initial decision, the Board issued Marcell v. Department of Veterans Affairs , 2022 MSPB 33, ¶¶ 6-7, which held that FLMA leave requests are excluded from protection under 5 U.S.C. § 2302(b) (9), and overruled Doe to the extent the Board explicitly or implicitly found otherwise. Accordingly, we modify the initial decision to clarify that requesting FMLA leave does not constitute protected activity under 5 U.S.C. § 2302(b)(9). Moreover, for an appellant to prevail on a contention of illegal retaliation, he has the burden of proving the following: (1) a protected disclosure was made; (2) the accused official knew of the disclosure; (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. Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). Here, we find that the appellant cannot prevail on his retaliation claim under the Warren standard because we agree with the administrative judge’s finding that he failed to provide preponderant evidence of a causal connection between his FMLA leave requests and his removal. ID at 17-18. Further, we discern no error in the administrative judge’s finding that the appellant’s FMLA leave requests were not related to the agency’s charges or considered as an aggravating factor in the agency’s penalty analysis. PFR File, Tab 1 at 5; ID at 17-18; IAF, Tab 8 at 40-41, Tab 18 at 11-13. We find that the appellant’s claim of adjudicatory bias is unavailing. Finally, the appellant argues that the administrative judge’s analysis and rulings were biased in favor of the agency. PFR File, Tab 1 at 1-2, 5. However, the Board will not infer bias based on an administrative judge’s case-related10 rulings, Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013), and we find that the appellant’s broad allegation of bias is insufficient to rebut the presumption of the administrative judge’s honesty and integrity, see Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). Thus, we find that the appellant’s claim of adjudicatory bias is unavailing. Accordingly, we sustain the agency’s removal action.5 NOTICE OF APPEAL RIGHTS6 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although 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 5 The appellant reasserts his claim that the deciding official was removed 3 months before she issued the decision to remove him. PFR File, Tab 1 at 5; IAF, Tab 19 at 8. Because the appellant has failed to support his claim with any evidence, we decline to disturb the initial decision on such a basis. Moreover, we discern no reason to disturb the initial decision based on the appellant’s vague allegation that the deciding official had a “vested interest” in his removal. PFR File, Tab 1 at 5. 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 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 obtain12 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 13 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, 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	Amoako_Kwadwo_O_DC-0752-18-0574-I-1_Final_Order.pdf	2024-08-28	KWADWO O. AMOAKO v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-18-0574-I-1, August 28, 2024	DC-0752-18-0574-I-1	NP
603	https://www.mspb.gov/decisions/nonprecedential/Clark_HeatherPH-114M-23-0268-Y-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD HEATHER CLARK, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER PH-114M-23-0268-Y-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Heather Clark , Bangor, Maine, pro se. Carla J. Chen , Esquire, Atlanta, Georgia, for the agency. Kelleen O'Fallon , Esquire, Philadelphia, Pennsylvania, 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 individual right of action (IRA) appeal for lack of jurisdiction. On petition for review, the appellant argues that the administrative judge erred in 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). finding that she did not make nonfrivolous allegations of protected disclosures. 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). For the reasons discussed below, we FORWARD the appellant’s IRA appeal concerning the matters exhausted in her June 9, 2023 complaint with the Office of Special Counsel (OSC) for docketing as a separate appeal. ¶2Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust her administrative remedies with OSC before seeking corrective action from the Board. Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). An appellant filing an IRA appeal has not satisfied the exhaustion requirement unless she has filed a complaint with OSC and either OSC has notified her that it was terminating its investigation of her allegations or 120 calendar days have passed since she first sought corrective action. 5 U.S.C. § 1214(a)(3); Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 8 (2010). We agree with the administrative judge that, at the time of initial decision’s issuance, the appellant had not shown that OSC had completed its investigation of her June 9, 2023 complaint or that 120 days had passed since she2 first sought corrective action. Initial Appeal File (IAF), Tab 22 at 3-4, Tab 37, Initial Decision (ID) at 7-8. Therefore, the administrative judge properly excluded consideration of those matters alleged in her June 9, 2023 complaint that had not yet been exhausted with OSC. IAF, Tab 22 at 3-4; ID at 7-8; see Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11 (explaining that the Board’s jurisdiction is limited to those issues that were exhausted with OSC). ¶3However, the Board’s practice is to adjudicate an appeal that was premature when it was filed but becomes ripe while pending before the Board. See Jundt v. Department of Veterans Affairs , 113 M.S.P.R. 688, ¶ 7 (2010); Simnitt, 113 M.S.P.R. 313, ¶ 9. Now that 120 days have passed since the appellant filed her June 9, 2023 OSC complaint, her IRA appeal concerning the retaliatory personnel actions and protected disclosures/activities alleged in that complaint are now ripe for adjudication. IAF, Tab 21. We therefore forward those claims to the regional office for docketing as a separate IRA appeal. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which 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	Clark_HeatherPH-114M-23-0268-Y-1_Final_Order.pdf	2024-08-28	HEATHER CLARK v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. PH-114M-23-0268-Y-1, August 28, 2024	PH-114M-23-0268-Y-1	NP
604	https://www.mspb.gov/decisions/nonprecedential/Sampson_ChristopherDA-0752-22-0059-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHRISTOPHER SAMPSON, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DA-0752-22-0059-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Veronica Harte , Esquire, and Christopher Forasiepi , Esquire, Dallas, Texas, for the appellant. Eileen Dizon Calaguas , Esquire, San Francisco, California, for the agency. Edward Kelley , Chicago, Illinois, 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 and denied his affirmative defenses. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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. Except as expressly MODIFIED to VACATE the administrative judge’s alternative findings concerning the appellant’s whistleblower reprisal affirmative defense, we AFFIRM the initial decision. BACKGROUND ¶2The appellant was a Transportation Security Inspector (TSI) with the Transportation Security Administration (TSA) from 2015 until November 3, 2021, when the agency removed him from Federal service. Initial Appeal File (IAF), Tab 20 at 25-35. TSIs conduct regulatory inspections and investigations and support criminal investigations. IAF, Tab 26 at 304 . TSA utilizes a system called Performance and Results Information Systems (PARIS) to store data concerning investigations, inspections, and incidents, including Enforcement Investigative Reports (EIR). Id. EIRs are treated as privileged information and are generally not released outside of the agency. IAF, Tab 31 at 7. ¶3The appellant’s fiancé, J.F., was employed by Envoy Air, a subsidiary of American Airlines. IAF, Tab 26 at 112, 182-83. On March 27, 2021, J.F. reported to work at Dallas Fort Worth Airport when TSA discovered that he had2 carried a firearm into a sterile area. Id. at 112. TSA opened an incident report and EIR in PARIS concerning this incident. Id. ¶4On or about April 5, 2021, TSA issued J.F. a Letter of Investigation (LOI) alleging that he had violated a Federal regulation by carrying a loaded firearm into the airport. IAF, Tab 28 at 58-59, Tab 31 at 7. J.F. was not entitled to a copy of the EIR after receiving the notification. IAF, Tab 26 at 113. Typically, an alleged violator is entitled to a copy of the EIR after the agency’s counsel, known as Field Counsel, has issued a Notice of Proposed Civil Penalty. Id. ¶5On or about April 11, 2021, the appellant accessed PARIS to view a TSA incident report involving J.F. IAF, Tab 31 at 7. On the same day, the appellant accessed PARIS to view an EIR concerning J.F. Id. The appellant obtained knowledge of privileged information when he reviewed the unredacted copy of the EIR and its attachments. Id. J.F. was not entitled to view that information. IAF, Tab 26 at 113. On April 27 and 29, 2021, the appellant again accessed PARIS to view an EIR concerning J.F. Id. at 182-83. On April 29, 2021, the appellant engaged another TSI, D.R., in discussion of the EIR involving J.F. Id. at 113. He showed her a copy of the EIR and told her perceived weaknesses in the report. Id. In particular, he stated that a Federal regulation cited in the EIR did not apply to the circumstances of J.F.’s case. Id. at 132-33. ¶6On the following day, D.R. accessed a copy of the EIR in PARIS. Id. at 134. She asserted that she wanted to verify the case number and her suspicion that the case involved the appellant’s fiancé before reporting him for misconduct. Id. Later that day, she reported to a supervisor that she believed the appellant had engaged in misconduct by accessing PARIS for personal use. Id. ¶7On April 30, 2021, the agency placed the appellant on administrative leave. Id. at 180. On September 2, 2021, it issued a notice of proposed removal based on charges of unauthorized use of Government property, misuse of position, and inappropriate comments. Id. at 110-121. On November 3, 2021, the agency3 issued a decision sustaining the several specifications of the first two charges and removing him from Federal service. Id. at 25-38. ¶8The appellant filed a Board appeal and, after a hearing, the administrative judge found that the agency proved its charges of unauthorized use of Government property and misuse of position, denied the appellant’s affirmative defenses of sex discrimination and whistleblower reprisal, and found that the penalty of removal was reasonable. IAF, Tab 43, Redacted Initial Decision (ID).2 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 3, 5-6. DISCUSSION OF ARGUMENTS ON REVIEW ¶9On review, the appellant challenges the administrative judge’s findings regarding the charges and the affirmative defenses. As set forth below, we agree with the administrative judge that the agency proved its charges of unauthorized use of Government property and misuse of position, that the appellant did not prove his affirmative defenses, and that the penalty of removal is reasonable. We agree with the administrative judge that the agency proved its unauthorized use of Government property charge. ¶10To establish a charge of unauthorized use of Government property, the agency must establish that the employee used Government property and the use of the property was not authorized. See Quarters v. Department of Veterans Affairs , 97 M.S.P.R. 511, ¶¶ 2-4 (2004). An agency is not required to prove intent to sustain the charge. Id., ¶ 4. As the administrative judge noted in the initial decision, the appellant stipulated that he used Government property when he accessed PARIS to view TSA’s incident report and EIR regarding his fiancé, J.F. ID at 9 (citing IAF, Tab 19 at 1). The administrative judge found that the appellant’s use of PARIS was not within the scope of his law enforcement duties because he was not assigned to investigate any matter pertaining to J.F. and, in 2 All references to the initial decision in this order refer to the redacted initial decision. IAF, Tab 43.4 fact, was prohibited from doing so, and his access was therefore unauthorized.3 ID at 11. ¶11On review, the appellant disputes, like he did before the administrative judge, that his use of the PARIS system was unauthorized. PFR File, Tab 3 at 8-9. He has asserted that agency officials testified at a hearing that they did not view D.R.’s use of PARIS as unauthorized and, by implication, his use was not unauthorized. Id. We disagree. The conduct of comparators will be considered in assessing the reasonableness of the penalty but is not relevant to whether the agency met its burden of proof to establish each element of the charge. See Douglas v. Veterans Administration , 5 M.S.P.R. 280, 332 (1981) (explaining that consistency of the penalty with those imposed upon other employees for the same or similar offenses is one factor that must be considered in determining whether the agency’s selected penalty is reasonable). The appellant also argues on review that the agency’s decision not to charge him with providing information to J.F. precludes it from proving the charge. PFR File, Tab 3 at 10. On this point, he has cited Scherer v. Department of the Treasury , 12 M.S.P.R. 476, 479-80 (1982), for the purported proposition that removal is not appropriate for unauthorized use of Government property when there is no personal gain. PFR File, Tab 3 at 10-11. However, Scherer does not stand for the proposition that personal gain is an element of proof in an unauthorized use charge; rather, the lack of personal gain was merely one of the Douglas factors referenced by the Board in discussing mitigation of the penalty. Scherer, 12 M.S.P.R. at 479. We agree with the administrative judge that the agency has met its burden of proof as to this charge. 3 In its letter sustaining the notice of proposed removal, the agency reiterated TSA’s ethics rules, which state, “You have a duty to protect and conserve Government property and may not use such property for other than authorized purposes.” IAF, Tab 26 at 31. 5 We agree with the administrative judge that the agency proved its misuse of position charge. ¶12To prove a charge of misuse of position, an agency must prove that the appellant misused his Government position resulting in private gain. See Gardner v. Department of Veterans Affairs , 123 M.S.P.R. 647, ¶ 11 (2016), clarified by Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 23-24. To prove its charge, the Board has held that the agency must show that the appellant actually received private gain, not just the appearance of private gain. See Mann v. Department of Health and Human Services , 78 M.S.P.R. 1, 8 (1998); Burnett v. U.S. Soldiers’ and Airmen’s Home , 13 M.S.P.R. 311, 313-15 (1982). ¶13The appellant stipulated that he accessed PARIS to view an EIR concerning J.F. and that, by doing so, he obtained knowledge of privileged information. ID at 12-13. He disputed, before the administrative judge and again on review, that he received private gain by doing so. PFR File, Tab 3 at 13-15. On this point, the administrative judge considered and rejected the appellant’s testimony that he did not access PARIS for the purpose of assisting J.F. ID at 13. She found the appellant’s contentions—that he did not provide nonpublic information to J.F. and that he did not provide substantive assistance in preparing J.F.’s response to the LOI—to be “inherently implausible and unworthy of belief.”4 ID at 14. This finding was based, in part, on the appellant’s testimony, which reflected similarities to J.F.’s written response. ID at 14 n.8. However, the administrative judge clarified that she need not decide whether the appellant inserted specific 4 The appellant appears to assert that, because the agency did not charge him with providing information to J.F., the administrative judge was precluded from making a finding on this issue. We disagree. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (stating 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); see also 5 C.F.R. § 1201.111(b)(1)-(2) (stating than an initial decision must contain findings of fact and conclusions of law upon all material issues and the reasons or bases for those findings). 6 privileged information that he viewed in PARIS into J.F.’s response to the LOI because, in any event, he derived a personal benefit by learning the status of the agency’s investigation, reviewing the full internal records and privileged information that was not available to J.F., and assisting J.F. in preparing a response. ID at 14. She found that the appellant furthered his own private interests relating to his personal relationship with J.F. ID at 14-15. The Board has found private gain in similar circumstances. See, e.g., Baker v. Department of Health and Human Services , 41 M.S.P.R. 363, 366 (1989) (finding that the appellant’s disclosure of confidential information to a subcontractor concerning finalists for a contract benefited the appellant’s private interest, namely, his friendship with the subcontractor’s employee), aff’d, 912 F.2d 1448 (Fed. Cir. 1990). ¶14On review, the appellant asserts that the agency admitted that the appellant did not disclose information to J.F. PFR File, Tab 3 at 13. We disagree. The agency asserted that it did not charge the appellant in its notice of proposed removal with providing information to J.F.; it did not admit that the appellant did not provide information to J.F. IAF, Tab 31 at 18-20. The appellant also emphasizes on review that J.F.’s response to the LOI did not contain any information that was not publicly available and, therefore, the appellant did not receive any private gain from his access to PARIS. PFR File, Tab 3 at 14-15. That the appellant attempted to hide his unauthorized access by not highlighting the information he wrongfully obtained in J.F.’s response to the LOI does not negate that he furthered his relationship with J.F. by obtaining the information in the first place. The appellant has provided no reason to disturb the administrative judge’s well-reasoned credibility findings discussed above and we decline to do so. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining 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 and the Board may only overturn7 such determinations when it has sufficiently sound reasons for doing so). We find that the agency has proved the misuse of position charge. We agree with the administrative judge that the appellant failed to prove his affirmative defenses. ¶15The administrative judge found that the appellant failed to prove his affirmative defenses of sex discrimination and whistleblower reprisal. ID at 15-26. The appellant has challenged those findings on review. PFR File, Tab 3 at 15-24. We address each in turn below. Sex Discrimination ¶16The appellant alleged that the agency’s decision to remove him was the result of sex discrimination because D.R., a female coworker, engaged in the same behavior but was not disciplined. ID at 17. The appellant testified that he once heard a supervisor refer to D.R. as his “perfect little angel.” Id. Additionally, he testified that D.R. once screamed at a supervisor and was not disciplined. Id. The administrative judge found that the appellant failed to demonstrate that D.R. was similarly situated to him for purposes of a discrimination affirmative defense and that, considering the remaining evidence in the record, the appellant failed to prove that his sex was a motivating factor in his removal. ID at 18-19; see Pridgen, 2022 MSPB 31, ¶ 23 (describing the methods by which an appellant may prove a discrimination affirmative defense). ¶17To be similarly situated, a comparator must have reported to the same supervisor, been subjected to the same standards governing discipline, and engaged in conduct similar to the appellant, without differentiating or mitigating circumstances. Pridgen, 2022 MSPB 31, ¶ 27. Although D.R. and the appellant reported to the same supervisor and engaged in similar conduct, we find that the agency adequately explained why the appellant was disciplined and D.R. was not. The individual who supervised the appellant and D.R. testified that he did not discipline D.R. because she looked at PARIS records to verify that the case the appellant had improperly accessed involved the appellant’s fiancé before8 reporting him for misconduct. Hearing Record (testimony of C.S.). He stated that D.R. was validating information before reporting misconduct and there was no reason to discipline her for that access. Id. Although the appellant reasserts on review that his access, like D.R.’s, was intended to investigate waste, fraud, and abuse, the administrative judge found that his explanation was unworthy of belief. ID at 13-14; PFR File, Tab 3 at 18-19. We agree with the administrative judge that, even considering the remaining evidence in the record, the appellant has failed to meet his burden to prove that his sex was a motivating factor in his removal. ID at 18-19; see Pridgen, 2022 MSPB 31, ¶¶ 21-22 (explaining that, to obtain any relief, the appellant must show, at a minimum, that the prohibited consideration was a motivating factor in the personnel action). Whistleblower Reprisal ¶18The appellant has alleged, both before the administrative judge and again on review, that the agency removed him in retaliation for his protected whistleblower disclosures. In relevant part, the appellant’s disclosures concerned his communications to D.R. and to an agency investigator that he believed TSA applied incorrect regulations in the EIR concerning J.F., and that the proposed civil penalty in the EIR and LOI was too high.5 ID at 20-21; PFR File, Tab 3 at 20-23. The administrative judge found that the appellant failed to prove that his disclosures are protected by 5 U.S.C. § 2302(b)(8). ID at 20-24. Alternatively, she found that, assuming there was a protected disclosure, the appellant proved that it was a contributing factor in the agency’s decision to remove him but, in any event, the agency proved by clear and convincing evidence that it would have removed him in the absence of his protected whistleblowing. ID at 24-26. The appellant challenges these findings on review 5 Before the administrative judge, the appellant alleged that he engaged in additional whistleblowing by communicating with the Office of Inspector General, the Office of Special Counsel, and a congressional representative. The administrative judge found that this whistleblowing occurred after the removal decision and therefore could not have been a contributing factor in the decision. ID at 24. The appellant has not challenged that finding on review and we find no reason to disturb it.9 and appears to reassert that he disclosed abuse of authority and a violation of law, rule, or regulation. PFR File, Tab 3 at 21-22. ¶19We agree with the administrative judge that the appellant’s purported disclosures are not protected under whistleblower protection laws. ID at 21-24. Following his improper access of an investigative report and other predecisional materials concerning his fiancé, the appellant voiced his disagreement with the agency’s investigation. ID at 22. However, pursuant to the agency’s policies, after TSA completed the investigation and J.F. responded to the LOI, the case would be referred to Field Counsel, who would review and request changes before issuing a final proposed civil penalty. Id. At each step in the process, and particularly in the agency’s predecisional and deliberative investigative report, the agency has the authority to exercise discretion. The files viewed by the appellant contained the investigator’s opinions and recommendations. IAF, Tab 26 at 29. We therefore agree with the administrative judge that the appellant’s disclosures evidenced mere disagreement with debatable policy decisions and that the appellant did not reasonably believe he was disclosing an arbitrary and capricious exercise of power or that TSA violated any law, rule, or regulation. ID at 21-24; see 5 U.S.C. § 2302(b)(8)(A)(i) (stating that a protected disclosure is one that the employee reasonably believes evidences a violation of law, rule, or regulation); Herman v. Department of Justice , 115 M.S.P.R. 386, ¶ 11 (2011) (stating that, to prove abuse of authority, an appellant must prove by preponderant evidence that he disclosed an arbitrary or capricious exercise of power by a Federal official that adversely affects the rights of any person or results in personal gain or advantage to himself or other persons); see also Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 12 & n.6 (2015) (finding that disclosures concerning a proposed policy were not protected by whistleblower protection laws). The appellant’s arguments on review are insufficient to warrant a different outcome. PFR File, Tab 3 at 20-23. 10 ¶20Because we agree with the administrative judge that the appellant did not prove that he made a protected whistleblower disclosure pursuant to 5 U.S.C. § 2302(b)(8), we vacate the administrative judge’s alternative findings that the appellant proved contributing factor and that the agency proved it would have removed the appellant in the absence of any protected whistleblowing. See Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). We agree with the administrative judge that the agency’s selected penalty of removal is reasonable. ¶21The 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 306. In reviewing the agency-imposed penalty, the Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency. Id. at 302. On review, the appellant asserts, as he did before the administrative judge, that removal is not warranted because the agency did not discipline D.R. for her access of J.F.’s records on PARIS. PFR File, Tab 3 at 15-17. ¶22The Board recently addressed the consideration of comparators in analyzing the reasonableness of a penalty in Singh v. U.S. Postal Service , 2022 MSPB 15. The Board cautioned that it should not attempt to weigh the relative seriousness of various offenses to determine whether two employees who committed different acts of misconduct were treated disparately. Id., ¶ 17. It also reiterated that the consistency of the penalty with those imposed upon other employees for the same or similar offenses is simply one of a nonexhaustive list of 12 factors that should be considered in determining the appropriateness of a penalty. Id., ¶ 18. In this case, the deciding official testified that D.R.’s access of PARIS was a “completely different situation” from the appellant’s situation because D.R. accessed PARIS solely for the purpose of reporting the appellant’s misconduct. ID at 28. D.R. reported the appellant’s misconduct on the same day she accessed11 PARIS to verify the case number. IAF, Tab 26 at 134. Although the appellant has repeatedly asserted that he accessed PARIS to investigate waste, fraud, and abuse, he did not report such waste, fraud, and abuse to any management official until after he was being investigated for misuse of Government property. Id. at 141. For the reasons set forth in the initial decision, we find that removal does not exceed the bounds of reasonableness. ID at 27-29. NOTICE OF APPEAL RIGHTS6 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 6 Since the issuance of the initial decision in this matter, the Board may have updated the notice 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 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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,13 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, 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 14 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.7 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 7 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.16	Sampson_ChristopherDA-0752-22-0059-I-1_Final_Order.pdf	2024-08-28	CHRISTOPHER SAMPSON v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-22-0059-I-1, August 28, 2024	DA-0752-22-0059-I-1	NP
605	https://www.mspb.gov/decisions/nonprecedential/Velasquez_JorgeDA-0752-23-0227-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JORGE VELASQUEZ, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DA-0752-23-0227-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Roberto M. Garcia , Esquire, Edinburg, Texas, for the appellant. David Willis , Esquire, Brownsville, Texas, for the appellant. George Altgelt , Esquire, Laredo, Texas, for the appellant. Kerece A. Grant and Ara Cantu , Laredo, Texas, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed his removal based on one charge of conduct unbecoming a border patrol agent (two specifications). On petition for review, the appellant reiterates 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). arguments from below concerning the agency’s proof supporting specification one of the charge, his self-defense argument as it relates to specification two of the charge, and the administrative judge’s findings regarding nexus. 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.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 With the appellant’s petition for review, he submits official agency information sheets regarding the agency’s Special Operations Group, Border Patrol Tactical Unit, and Border Patrol Search, Trauma, and Rescue Unit. PFR File, Tab 1 at 28-30. He also submits a copy of the prior Board decision in Fuller v. Department of the Navy , 60 M.S.P.R. 187 (1993), aff’d, 40 F.3d 1250 (Fed. Cir. 1994) (Table). Id. at 31-45. 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 closed before the administrative judge despite the party’s due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980 ). Here, the record closed on July 12, 2023, following the conclusion of the hearing. The appellant has not shown that any of the documents he submitted on review were unavailable before that date, nor has he explained how they are of sufficient weight to warrant an outcome different than that of the initial decision. Accordingly, they do not provide 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).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	Velasquez_JorgeDA-0752-23-0227-I-1_Final_Order.pdf	2024-08-28	JORGE VELASQUEZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-23-0227-I-1, August 28, 2024	DA-0752-23-0227-I-1	NP
606	https://www.mspb.gov/decisions/nonprecedential/Yost_ChristyDE-0752-19-0340-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHRISTY YOST, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DE-0752-19-0340-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ryan Aubrey , Esquire, and Tyler Sroufe , Esquire, Dallas, Texas, for the appellant. Stephanie Ailor and Carolyn Sarnecki , Chicago, Illinois, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained the agency’s removal action based on her failure to meet a condition of employment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to find that the agency proved nexus and to supplement the penalty analysis, we AFFIRM the initial decision. On review, the appellant challenges the administrative judge’s finding that the agency proved by preponderant evidence the charge of failure to meet a condition of employment. Petition for Review (PFR) File, Tab 3 at 9-15. After considering the appellant’s arguments regarding the charge, we find that they were adequately addressed in the initial decision by the administrative judge, and we discern no reason to disturb her findings. Initial Appeal File (IAF), Tab 47, Initial Decision (ID) at 17-20. The appellant further challenges the administrative judge’s finding that the appellant failed to prove by preponderant evidence the affirmative defense of sex discrimination. PFR File, Tab 3 at 17-18. As properly explained in the initial decision, the appellant was required to show that sex discrimination was a motivating factor in the removal action. ID at 20-22; see Wilson v. Small Business Administration , 2024 MSPB 3, ¶ 11; Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 20. Considering the record evidence as a whole, we agree with the administrative judge’s finding that the appellant has failed to2 prove that sex discrimination was a motivating factor in her removal.2 ID at 22-24. In addition, the appellant argues that the agency failed to prove the existence of nexus and the reasonableness of the penalty. PFR File, Tab 3 at 15-17. The administrative judge correctly discussed, but did not decide, the issue of nexus. ID at 16. Thus, we modify the initial decision to find that the agency proved the existence of nexus between the appellant’s failure to meet a condition of employment and the efficiency of the service. See Gallegos v. Department of the Air Force , 121 M.S.P.R. 349, ¶¶ 2, 17 (2014) (finding nexus when the agency proved the charge of failure to fulfill a condition of employment). Further, in determining the reasonableness of the penalty, the administrative judge did not consider the appellant’s arguments concerning consistency of the penalty, which she reasserts on review. PFR File, Tab 3 at 15-16; ID at 20; IAF, Tab 41 at 4-5, 13 -15, 30. The “consistency of the penalty with those imposed upon other employees for the same or similar offenses” is one of the factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), that are relevant for consideration in determining the reasonableness of a penalty. Therefore, we modify the initial decision as follows to address this issue . Having reviewed the record, we find no evidence of a similarly situated employee who received lesser discipline for similar misconduct. The appellant proffered several comparators, but we find that none of them committed “the same or similar offenses,” i.e., failing to successfully complete a background investigation. PFR File, Tab 3 at 15-16; IAF, Tab 17 at 30, Tab 19 at 56; see Douglas, 5 M.S.P.R. at 305; see also Singh v. U.S. Postal Service , 2022 MSPB 2 Because the administrative judge found that the appellant failed to show that sex discrimination was a motivating factor in the removal action, we need not reach the question as to whether it was a but-for cause of the action. See Pridgen, 2022 MSPB 31, ¶¶ 40, 42.3 15, ¶ 17 (observing that the Board should not attempt to weigh the relative seriousness of various offenses in order to determine whether two employees who committed different acts of misconduct were treated disparately). We further find that the deciding official’s declaration that he considered that removal was consistent with penalties issued to other employees who similarly failed their background investigations proves that the agency considered the corresponding Douglas factor. ID at 7-8; IAF, Tab 42 at 21; see Douglas, 5 M.S.P.R. at 305. Moreover, after considering the appellant’s remaining arguments on review, we discern no reason to disturb the administrative judge’s findings that the agency properly considered the relevant Douglas factors and that removal was an appropriate penalty. PFR File, Tab 3 at 15-17; ID at 16-17, 20; see Gallegos, 121 M.S.P.R. 349, ¶¶ 2, 17 (finding no reason to disturb the administrative judge’s conclusion that the penalty of removal was reasonable for the sustained charge of failure to fulfill a condition of employment); see also Penland v. Department of the Interior , 115 M.S.P.R. 474, ¶¶ 7-8 (2010). Accordingly, we sustain the agency’s removal action. 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 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 this 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.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. 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. 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	Yost_ChristyDE-0752-19-0340-I-1_Final_Order.pdf	2024-08-28	CHRISTY YOST v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0752-19-0340-I-1, August 28, 2024	DE-0752-19-0340-I-1	NP
607	https://www.mspb.gov/decisions/nonprecedential/Adams_Charles_D_DC-3443-23-0577-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHARLES DERECK ADAMS, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER DC-3443-23-0577-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles Dereck Adams , Herndon, Virginia, pro se. Sandy Reinfurt , 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 appellant has filed a petition for review of the initial decision, which dismissed his appeal for lack of jurisdiction. On petition for review, the appellant argues, among other things, that the Board has jurisdiction over his appeal because his allegations are not frivolous, and the Board has adjudicated discrimination claims in the past. Generally, we grant petitions such as this one 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this 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 several petitions for review in different Board appeals, which the Board will address separately. 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 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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	Adams_Charles_D_DC-3443-23-0577-I-1_Final_Order.pdf	2024-08-28	CHARLES DERECK ADAMS v. DEPARTMENT OF JUSTICE, MSPB Docket No. DC-3443-23-0577-I-1, August 28, 2024	DC-3443-23-0577-I-1	NP
608	https://www.mspb.gov/decisions/nonprecedential/Howard_Jason_J_DE-0752-21-0029-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JASON J. HOWARD, Appellant, v. DEPARTMENT OF LABOR, Agency.DOCKET NUMBER DE-0752-21-0029-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jason J. Howard , Green River, Wyoming, pro se. Isabella M. Finneman , Esquire, and Lydia Tzagoloff , Esquire, Denver, Colorado, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his appeal of his termination during his probationary period with prejudice to refiling for failure to prosecute. 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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On review, the appellant asserts that there were no law firms in Wyoming available to assist him because they are overwhelmed as a result of the COVID-19 pandemic. The Board has held that an appellant’s difficulty in obtaining a representative does not excuse his failure to prosecute his appeal by not complying with the Board’s orders. Williams v. U.S. Postal Service , 116 M.S.P.R. 377, ¶ 11 (2011); Murdock v. Government Printing Office , 38 M.S.P.R. 297, 299 (1988). A pro se appellant may not escape the consequences of inadequate representation. Williams, 116 M.S.P.R. 377, ¶ 11; Murdock, 38 M.S.P.R. at 299. Even if the appellant’s difficulty in obtaining a representative presented a recognizable excuse for his failure to fully participate below, the record does not reflect that he sought extensions of time to respond to the four Board orders or otherwise apprised the administrative judge that he was unable to proceed with his appeal until he obtained a representative. Thus, we affirm the initial decision, which dismissed the appeal with prejudice to refiling for failure to prosecute. 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	Howard_Jason_J_DE-0752-21-0029-I-1_Final_Order.pdf	2024-08-28	JASON J. HOWARD v. DEPARTMENT OF LABOR, MSPB Docket No. DE-0752-21-0029-I-1, August 28, 2024	DE-0752-21-0029-I-1	NP
609	https://www.mspb.gov/decisions/nonprecedential/Rice_TonyaAT-1221-23-0154-W-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TONYA RICE, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER AT-1221-23-0154-W-1 DATE: August 28, 2024 THIS ORDER IS NONPRECEDENTIAL1 Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant. Steven P. Hester , Esquire, and Jessica Dawn Vazquez , North Charleston, South 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 individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review. We REVERSE the administrative judge’s finding that the appellant failed to make 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). nonfrivolous allegation that her Office of Inspector General (OIG) complaint was a contributing factor in the agency’s decision to maintain a hostile work environment, AFFIRM the remainder of the initial decision, and REMAND the appeal to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW ¶2To establish jurisdiction in an IRA appeal, an appellant must show by preponderant evidence that she exhausted her remedies before the Office of Special Counsel (OSC), and make nonfrivolous allegations2 that: (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39; see Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001). ¶3The appellant does not challenge, and we discern no error with, the administrative judge’s following findings: (1) she exhausted her administrative remedy with OSC; (2) she did not nonfrivolously allege that her equal employment opportunity complaint and grievance constituted activity protected by 5 U.S.C. § 2302(b)(9); (3) she nonfrivolously alleged that her OIG complaint was protected by 5 U.S.C. § 2302(b)(9); and (4) the only personnel action that occurred after the OIG complaint was the agency allegedly maintaining a hostile work environment. Initial Appeal File (IAF), Tab 15, Initial Decision (ID) at 5-10. We therefore affirm the initial decision in these regards. 2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).2 ¶4We have considered the appellant’s claim on review that she disclosed an abuse of authority in her August 2019 and December 2019 disclosures. Petition for Review (PFR) File, Tab 1 at 5-8. Although the appellant asserts that there was no legitimate reason for the communications restrictions and that these restrictions harmed her and made it more difficult for her to do her job, IAF, Tab 13 at 5-6, her own pleadings reflect that the communications restrictions were imposed, at least in part, due to interpersonal conflicts between her and other agency employees and were temporary measures. IAF, Tab 1 at 32, 107-09, 111, 118. A disinterested observer could not reasonably conclude that the described events—involving an agency’s temporary use of communications restrictions to address interpersonal conflicts—evidenced an abuse of authority. See Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 15 (2014); Shannon v. Department of Veterans Affairs , 121 M.S.P.R. 221, ¶¶ 22, 28 (2014); Wheeler v. Department of Veterans Affairs , 88 M.S.P.R. 236, 241, ¶ 13 (2001) (stating that an abuse of authority occurs when there is an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons). Therefore, we affirm the administrative judge’s finding that the appellant failed to nonfrivolously allege that she disclosed an abuse of authority in her August 2019 and December 2019 disclosures. ¶5We have also considered the appellant’s argument that the administrative judge erred when he found that she did not nonfrivolously allege that her OIG complaint was a contributing factor in the agency’s decision to maintain the hostile work environment. PFR File, Tab 1 at 8-9; ID at 9-11. In her response to the order to show cause, the appellant made the following allegations regarding contributing factor: Because I reached out to [the OIG investigator] when the [letter of reprimand] appeal decision was due and after contacting [the OIG investigator], I received the decision from [the Competency Director on the grievance] with [a Labor and Employee Relations (LER)3 supervisor] on copy on/around early April 2020. Timing of actions. In my appeal to employee relations, I notified them I had went [sic] to IG. See Tab 5 at p. 18. “IG meeting 1/2/20. On my appeal to [L]ER, I sent follow on email to notify them I had inquired with the IG. HR Leadership is aware.” See Tab 1 at p. 111. IAF, Tab 13 at 7. ¶6A whistleblowing disclosure or protected activity is a contributing factor if it in any way affects an agency’s decision to take a personnel action. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 14 (2012). One way to establish contributing factor is the knowledge/timing test. Wadhwa v. Department of Veterans Affairs , 110 M.S.P.R. 615, ¶ 12, aff’d per curiam , 353 F. App’x 435 (Fed. Cir. 2009). Under that test, an appellant can prove the contributing factor element through evidence showing that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. An appellant also may satisfy the knowledge prong of the knowledge/timing test by proving that the official taking the action had constructive knowledge of the protected disclosure, even if the official lacked actual knowledge. Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish constructive knowledge by showing that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action. Id. Importantly, the respondent in a corrective action appeal is the agency, not its individual officials; therefore, a lack of actual knowledge by a single official is not dispositive to the issue of contributing factor. Id.; Dorney, 117 M.S.P.R. 480, ¶ 12. ¶7We are not persuaded that the “[t]iming of actions” or temporal proximity satisfies the appellant’s burden to prove knowledge under the knowledge/timing test. IAF, Tab 13 at 7; PFR File, Tab 1 at 9. However, the appellant asserted that she advised LER that she went to the OIG, she spoke to LER about several workplace issues (including a hostile work environment, a letter of reprimand,4 and a grievance), and LER “work[s] for management.” IAF, Tab 1 at 20, 112-13, Tab 5 at 16-18, Tab 13 at 7. Reading her pleadings together, the appellant essentially alleged that an LER employee with whom she had spoken about her OIG complaint would have spoken with her supervisors or managers about the fact that she went to OIG or advised them on workplace issues in which she was involved, and at least some of these supervisors or managers were responsible for maintaining a hostile work environment. The burden to make a nonfrivolous allegation is a low one, and the Board has held that it must resolve any doubt or ambiguity in the appellant’s allegations in favor of finding jurisdiction. Usharauli v. Department of Health and Human Services , 116 M.S.P.R. 383, ¶ 19 (2011); Jessup v. Department of Homeland Security , 107 M.S.P.R. 1, ¶ 10 (2007). Given this precedent, we conclude that the appellant satisfied her burden to make nonfrivolous allegations of contributing factor under the knowledge/timing test.3 See Jessup, 107 M.S.P.R. 1, ¶ 10 (finding that the appellant made a nonfrivolous allegation that the agency decisionmakers knew of the disclosure via the Chief of Staff or were influenced by the Chief of Staff, who knew of the disclosure). ¶8Based on the foregoing, we find that the appellant nonfrivolously alleged that her OIG complaint was a contributing factor in the maintenance of the hostile work environment, and thus, the Board has jurisdiction over her IRA appeal. Accordingly, we remand the appeal to the Atlanta Regional Office, where the appellant is entitled to a hearing on the merits, which she must prove by preponderant evidence. See 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 her burden of proving by preponderant evidence that her OIG complaint was a contributing factor in the agency’s maintenance of a hostile work environment, the agency shall have the 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’s allegation that the hostile work environment started in August 2019, and continued following her OIG complaint, IAF, Tab 13 at 5-7, satisfies her burden to prove the timing prong of the knowledge/timing test at the jurisdictional stage.5 appellant’s OIG complaint. See 5 U.S.C. § 1221(e)(2); Carr v. Social Security Administration, 185 F.3d 1318, 1322-23 (Fed. Cir. 1999); Lu, 122 M.S.P.R. 335, ¶ 7. ORDER ¶9For 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.6	Rice_TonyaAT-1221-23-0154-W-1_Remand_Order.pdf	2024-08-28	TONYA RICE v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-1221-23-0154-W-1, August 28, 2024	AT-1221-23-0154-W-1	NP
610	https://www.mspb.gov/decisions/nonprecedential/Sohbatzadehlanbar_BrittanySF-0752-18-0579-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHAYAN SOHBATZADEHLANBAR, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER SF-0752-18-0579-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brittany Sohbatzadehlanbar , Waimea, Hawaii, for the appellant. Bora Kim and Jenny Masunaga , Pearl Harbor, Hawaii, 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 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). The undisputed facts as set forth by the administrative judge are as follows. Effective August 24, 2015, the appellant received an excepted-service appointment to the position of Electronics Engineer (Intern), GS-0855-07, with the Department of the Army pursuant to 5 C.F.R. § 213.3402(b), the Pathways Recent Graduates Program, not to exceed 2 years plus any agency extension of no more than 120 days. Initial Appeal File, Tab 17, Initial Decision (ID) at 2. Effective January 21, 2017, the appellant resigned from his position with the Department of the Army. Id. Effective January 23, 2017, the appellant received an excepted-service appointment to the position of Electronics Engineer, GS-0855-07, with the Department of the Navy, again pursuant to 5 C.F.R. § 213.3402(b), the Pathways Recent Graduates Program. Id. On May 9, 2018, the Department of the Navy issued the appellant a Notice of Termination, advising him that his appointment under the Pathways Recent Graduates Program had expired on August 23, 2017. Id. at 3. As the administrative judge set forth, the Pathways Program was established in 2010 by Executive Order 13562 and replaced the Student Career Experience Program (SCEP) and the Federal Career Intern Program (FCIP). ID at 5. Appointments to the Pathways Recent Graduates Program may be for a period of up to 2 years, depending on the agency and position. 5 C.F.R.2 § 362.105(g). The duration of the recent graduate’s appointment in the excepted service is a trial period. 5 C.F.R. § 362.303(f). After successfully completing the program, the recent graduate may be noncompetitively converted to a competitive service position. 5 C.F.R. 362.305. If the recent graduate accepts a new appointment under the Recent Graduates Program with another agency without a break in service, his time served under the previous agency’s Recent Graduates Program is credited toward the program requirements for noncompetitive conversion eligibility to the competitive service and he does not begin a new period in the program upon moving to the new agency. 5 C.F.R. § 362.304. Service in the Pathways Program confers no right to further employment in either the competitive or excepted service. 5 C.F.R. § 362.107(f). Here, the administrative judge found that the appellant’s appointment under the Pathways Program was for a term of 2 years as set forth in his Standard Form 50 and the Department of the Navy’s Memorandum of Understanding regarding its Pathways program.2 ID at 2-3, 5. He further found that the appellant’s Pathways appointment automatically terminated on August 23, 2017, when the Department of the Navy took no steps to convert him to the competitive service, and after August 23, 2017, the appellant worked without a valid appointment until his termination on May 9, 2018. ID at 6. Consequently, the administrative judge found that the appellant failed to nonfrivolously allege that he was subjected to an adverse action within the Board’s jurisdiction because the termination of an appointment on the expiration date specified as a basic condition of employment at the time the appointment was made does not constitute an adverse action. Id. In light of his determination, the administrative judge declined to address whether 2 The administrative judge found that the appellant had not begun a new 2-year period in the Pathways Program when he was hired by the Department of the Navy on January 23, 2017, without a break in service, but rather his time served under the Department of the Army’s Pathways Program was credited toward the program requirements for noncompetitive conversion eligibility to the competitive service. ID at 6. To the extent the appellant argues that the administrative judge found that his appointments were not under the Pathways Recent Graduates Program, he is mistaken. Petition for Review File, Tab 1 at 7.3 the appellant was an employee within the meaning of 5 U.S.C. § 7511(a)(1)(C). ID at 7. In finding that the appellant failed to nonfrivolously allege that he suffered an adverse action, the administrative judge relied on Rivera v. Department of Homeland Security , 116 M.S.P.R. 429, ¶ 10 (2011), and Scull v. Department of Homeland Security , 113 M.S.P.R. 287, ¶ 6 (2010). ID at 6. On review, the appellant argues that this was improper because such cases are distinguishable to the extent the appellants in those cases were terminated on or before the expiration of their appointments. Petition for Review (PFR) File, Tab 1 at 6.3 We agree with the appellant that the facts of Scull and Rivera are different than those of his case. At the very least, the appellants in those cases did not continue to work and get paid after the expiration of their FCIP appointments. However, we agree with the administrative judge that Scull and Rivera are instructive on two points of law. First, this type of appointment terminates upon its expiration unless the agency has taken affirmative steps to extend it or convert it to the competitive service.4 Rivera, 116 M.S.P.R. 429, ¶ 9. Pathways is like FCIP in this regard; the Pathways regulations specifically provide that “[a]n agency wishing to convert a Pathways Participant [to a competitive service appointment] must . . . execute the required actions to do so.” 5 C.F.R. § 362.107(f). Second, termination pursuant to the expiration of this type of appointment is generally not an adverse action appealable to the Board because it merely carries out the terms of the appointment.5 Scull, 113 M.S.P.R. 287, ¶ 7; 3 The appellant also contends that the administrative judge improperly relied on a case called Locklear. PFR File, Tab 1 at 6. However, we are unable to locate a citation to Locklear in the initial decision and the appellant has not provided a citation. 4 The Pathways Recent Graduates Program allows for agency approved extensions of up to an additional 120 days beyond the 2-year mark. 5 C.F.R. §§ 362.105(g), 362.301. Because more than 120 days elapsed between August 23, 2017, and May 9, 2018, we do not reach the issue of whether the continuation of the working relationship constituted an “agency approved extension” under this regulation. 5 In the case of a competitive service probationer, the employing agency’s inaction at the end of the probationary period serves to confer the employee with career tenure.4 see 5 C.F.R. § 752.401(b)(11); see also 5 C.F.R. § 362.107(f) (“[S]service in a Pathways Program confers no right to further employment in either the competitive or excepted service.”). We also agree with the administrative judge that, because the maximum permissible period for his Pathways appointment had expired several months before, and the agency never converted him to an appointment in the competitive service, the appellant was not serving in a valid appointment at the time the agency separated him from service. ID at 6. Although the appellant was still working and getting paid, his working relationship with the agency was in an extra-legal status, not sanctioned by law. Because the appellant was not serving in a valid appointment on May 9, 2018, when the agency “terminated” his employment, the agency’s actions on that date were not, nor could they have been, an adverse action within the Board’s chapter 75 jurisdiction. Specifically, because the appellant’s Pathways appointment had already terminated by operation of law and he had not received a new appointment under lawful authority, he did not meet the statutory definition of “employee” under 5 U.S.C. § 2105(a). The appellant “was not appointed in the civil service and, therefore, by the termination of the ‘appointment’ he has not suffered an adverse action as defined in 5 U.S.C. [chapter] 75.” Green v. Department of the Navy , 11 M.S.P.R. 291, 294 (1982).6 On review, the appellant also argues that he was not afforded E.g. Stewart v. Department of Transportation , 2023 MSPB 18, ¶ 15. Competitive service probationers remain in the same competitive service position both before and after the expiration of their probationary periods; the only thing that changes is the individual’s tenure status, which happens automatically by operation of law. See 5 C.F.R. § 315.202. In contrast, Pathways appointees who successfully complete their initial excepted service appointments must obtain a noncompetitive conversion to a position in the competitive service. This requires affirmative conduct by the employing agency. 5 C.F.R. §§ 362.107(c), (f), 362.305. 6 The Office of Personnel Management amended the regulations governing the Pathways Programs, effective June 11, 2024. 89 Fed. Reg, 25,751 (Apr. 12, 2024). Among other changes, the amended regulations explicitly allow those in the Recent Graduates program to convert to a permanent or term position at a different agency under identified circumstances when the losing agency is unable to convert the individual. 5 C.F.R. §§ 362.107(c)(2), 362.305(c) (2024). In addition, the regulations now require5 proper notice of his jurisdictional burden to nonfrivolously allege that he suffered an appealable action. PFR File, Tab 1 at 4. Even assuming that the appellant did not receive proper notice, the initial decision put him on notice and afforded him the opportunity to meet his jurisdictional burden on petition for review. See Parker v. Department of Housing & Urban Development , 106 M.S.P.R. 329, ¶ 8 (2007) (explaining that an initial decision can cure defective jurisdictional notice). Having considered the appellant’s arguments, we agree with the administrative judge that he has not nonfrivolously alleged that he suffered an adverse action. Finally, although the appellant argues that the administrative judge should have determined whether he met the definition of an employee under 5 U.S.C. § 7511, PFR File, Tab 1 at 6, the appellant’s status as an employee with adverse action appeal rights has no bearing on the question of whether he was actually subjected to an adverse action within the Board’s jurisdiction, Scull, 113 M.S.P.R. 287, ¶ 10. Accordingly, we affirm the initial decision, dismissing the appellant’s appeal for lack of jurisdiction. agencies making appointments under Pathways authority to establish a Pathways Policy, which must include a set of criteria and procedures specifying the timeline for making a determination regarding conversion of appointments to permanent or term positions. The agency must notify the Pathways Participant whether it will convert him/her no later than 60 days before the appointment is to end, and if the agency is unable to effect the conversion, its procedures “may include the actions it will take to assist a Participant in pursuing a conversion at another agency (when appropriate).” 5 C.F.R. § 362.104(a)(9) (2024). Had these regulations been in effect at the time the appellant’s Recent Graduates appointment was coming to an end, the Navy would have been required to inform him whether it intended to convert him to a permanent or term position at least 60 days before the appointment’s August 23, 2017 termination; presumably, this would have prevented the agency from continuing to employ the appellant in his position under an invalid appointment for 8 months after the Recent Graduates appointment had terminated.6 NOTICE OF APPEAL RIGHTS7 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for 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. 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 any8 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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’s9 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 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	Sohbatzadehlanbar_BrittanySF-0752-18-0579-I-1_Final_Order.pdf	2024-08-28	SHAYAN SOHBATZADEHLANBAR v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-18-0579-I-1, August 28, 2024	SF-0752-18-0579-I-1	NP
611	https://www.mspb.gov/decisions/nonprecedential/Pierson_Michelle_M_CH-0752-22-0321-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHELLE M. PIERSON, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-0752-22-0321-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michelle M. Pierson , Saint Clair, Michigan, pro se. Lauren Russo Ciucci , Esquire, Detroit, Michigan, 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 agency’s chapter 75 demotion 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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). The appellant’s arguments regarding a witness are unavailing. The appellant asserts that the administrative judge erroneously disallowed the testimony of one of her proffered witnesses, C.M. Petition for Review (PFR) File, Tab 1 at 3, 9; Initial Appeal File (IAF), Tab 27 at 5. To this end, she avers that she learned for the first time during the hearing that C.M. had determined her “rate of pay.” PFR File, Tab 1 at 3, 9. We interpret the appellant’s assertions as an argument that C.M.’s testimony would have supported her claim that, in demoting her from a GS-6 Police Officer to a GS-5 Security Assistant, the agency should have placed her at a higher step level.2 IAF, Tab 8 at 18, Tab 37, Initial Decision (ID) at 19. The administrative judge has broad discretion to regulate the course of the hearing and to exclude evidence and witnesses that have not been shown to be relevant, material, and nonrepetitious. Thomas v. U.S. Postal Service , 2 To the extent the appellant also contends that the agency failed to provide her with pay-related documents prior to the hearing, her contention is unavailing because she did not file a motion to compel before the administrative judge. PFR File, Tab 1 at 9; see Szejner v. Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005 ) (stating that, if an appellant fails to file a motion to compel before the administrative judge, the appellant is precluded from raising discovery issues for the first time on review), aff’d, 167 F. App’x 217 (Fed. Cir. 2006); 5 C.F.R. § 1201.73(c). 2 116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal of an initial decision on the ground that the administrative judge abused his discretion in excluding evidence, the appellant must show on review that relevant evidence, which could have affected the outcome, was disallowed. Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010). Here, the record reflects that the administrative judge did not approve C.M. as a witness because he found C.M.’s proffered testimony irrelevant and duplicative. IAF, Tab 27 at 5. The appellant did not object to this ruling. See Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988) (explaining that the appellant’s failure to timely object to rulings on witnesses precludes her from doing so on petition for review). In any event, the appellant does not explain how C.M.’s testimony could have affected the outcome of her appeal; indeed, she does not explain how his testimony could have demonstrated error with the administrative judge’s conclusion that she failed to show that the agency was required to place her at a higher step upon her demotion.3 ID at 19-20. Thus, a different outcome is not warranted. The appellant failed to show that the agency committed harmful procedural error. The appellant challenges the administrative judge’s conclusion that she failed to prove that the agency committed harmful procedural error in demoting her for failing to successfully complete a training course for agency police officers. PFR File, Tab 1; IAF, Tab 8 at 18, 20-23, 29-33. To this end, she asserts that the agency (1) wrongfully denied her a meaningful opportunity to improve and (2) should have provided her with an alternative firearm hand grip. PFR File, Tab 1 at 5, 21 -22, 27-28. We find these assertions unpersuasive. Pursuant to 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an agency’s decision if the appellant “shows harmful error in the application of the agency’s procedures in arriving at such decision.” A procedural error is harmful 3 The appellant’s remaining arguments regarding her step level and rate of pay do not provide a basis to disturb the initial decision. PFR File, Tab 1 at 3-4, 9 -18; ID at 19-20.3 when the record shows that an error by the agency was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. Pumphrey v. Department of Defense , 122 M.S.P.R. 186, ¶ 10 (2015); 5 C.F.R. § 1201.4(r). The appellant contends that the agency failed to provide her with an opportunity to improve, thereby violating her due process rights. PFR File, Tab 1 at 5, 21-22. To this end, she avers that the agency’s charge related to a performance deficiency, i.e., her failure to achieve a passing score on the firearms qualification portion of the agency’s police training course, and not misconduct; thus, the agency was required to place her on a performance improvement plan (PIP) prior to demoting her. Id. We disagree. In essence, the appellant conflates an action taken under chapter 75, such as her demotion, with a performance-based action taken under chapter 43. IAF, Tab 8 at 18, 20; compare Hall v. Department of Defense, 117 M.S.P.R. 687, ¶ 6 (2012) (setting forth the elements of a chapter 75 adverse action appeal, including proof of the agency’s charges, nexus, and reasonableness of the penalty), with Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 15 (setting forth the elements of a chapter 43 action, including warning an employee of the inadequacies in her performance during an appraisal period and giving her an adequate opportunity to demonstrate acceptable performance). Thus, the appellant has not identified any agency error. The appellant more specifically argues that the agency committed harmful error because “Section 10” of the applicable collective bargaining agreement (CBA) required the agency to place her on a PIP prior to her demotion. PFR File, Tab 1 at 22; IAF, Tab 23 at 289. We find this argument unavailing. The CBA provision that the appellant references pertains to an employee who fails to meet the standards of a critical element of her position. IAF, Tab 23 at 289. Here, the agency did not allege that the appellant failed to meet the standards of a critical element of her position; rather, it charged her with failure to complete a requisite training course, which the administrative judge treated as akin to “failure to4 maintain a condition of employment.” IAF, Tab 8 at 29, Tab 10 at 2; ID at 6 & n.3. Thus, a different outcome is not warranted. The appellant contends that the agency committed harmful error because it failed to provide her with an alternative firearm hand grip, i.e., an E2 grip, which she asserts is available for the service pistol used by the agency’s police force. PFR File, Tab 1 at 27. She asserts that this hand grip likely would have improved her shooting scores and enabled her to complete the training course. Id. at 28. This assertion, however, does not provide a basis to disturb the administrative judge’s conclusion that the appellant did not adduce any evidence of an agency rule or policy that would have required the agency to provide her with an alternative hand grip. ID at 16. Moreover, the appellant’s assertion that an alternative grip would have improved her shooting scores is speculative; indeed, as set forth in the initial decision, the appellant acknowledged that she has never fired a round with the E2 grip. Id.; see Pumphrey, 122 M.S.P.R. 186, ¶ 11 (finding that speculation was insufficient for the appellant to meet his burden of establishing harm). Accordingly, we find the appellant’s claims of harmful procedural error unavailing. The appellant failed to prove her claim of sex discrimination. The appellant reasserts her claim that the agency engaged in disparate treatment sex discrimination. PFR File, Tab 1 at 5, 19-20, 24-27. To this end, she argues the following: (1) she identified a valid male comparator who was treated more favorably than she was; (2) the agency provided her male counterparts with more training opportunities; and (3) the agency videotaped her firearms qualification attempt. Id. We find these assertions unpersuasive. The appellant challenges the administrative judge’s conclusion that she failed to identify a valid male comparator. PFR File, Tab 1 at 19-20, 24. To this end, she reasserts that agency employee M.B., who similarly failed his firearms qualification but was thereafter provided additional training and ultimately qualified, was a valid comparator. Id.; ID at 11-12. As set forth in the initial5 decision, to be considered a proper comparator for purposes of a claim of sex-based discrimination, the identified comparator 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. ID at 11 (citing Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 27); see Ly v. Department of the Treasury , 118 M.S.P.R. 481, ¶ 10 (2012) (explaining that, for an employee to be deemed similarly situated for purposes of an affirmative defense of discrimination based on disparate treatment, all relevant aspects of the appellant’s employment situation must be “nearly identical” to that of the comparator employee). Applying this standard, the administrative judge concluded that M.B. was not a valid comparator because he had a different supervisor, his failed qualification attempt occurred 8 years prior to the appellant’s attempt, and, unlike the appellant, M.B. had not received any firearms training prior to his qualification attempts. ID at 11-12. On review, the appellant asserts that although she and M.B. may not have had the same immediate supervisor, they shared a higher-level supervisor. PFR File, Tab 1 at 4, 20. We find this assertion unpersuasive. Indeed, even if the appellant and M.B. had shared an immediate supervisor, a different outcome would not be warranted because of other differentiating circumstances, e.g., the pre-qualification training provided to the appellant. ID at 12. Accordingly, the appellant’s assertions do not provide a basis to disturb the administrative judge’s conclusion that she failed to identify a valid comparator for purposes of her claim of sex discrimination. The appellant asserts that the agency failed to provide her with the same training opportunities that her male counterparts received. PFR File, Tab 1 at 5, 25. To the extent she argues that agency decisions regarding training, to include the training provided to M.B., are indicative of a discriminatory motive or otherwise support her claim of sex discrimination, her vague assertion does not provide a basis to disturb the initial decision. See Tines v. Department of the Air6 Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must contain sufficient specificity to enable the Board to ascertain whether there is a serious evidentiary challenge and concluding that the appellant’s petition contained neither evidence nor argument demonstrating error by the administrative judge). To the extent she instead challenges the administrative judge’s conclusion that she failed to prove that the agency committed harmful error as related to training, ID at 16-17, we find her challenge, which amounts to mere disagreement with the administrative judge’s conclusions, unavailing, 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). Finally, the appellant argues that the agency videotaped her firearms qualification attempt but did not videotape the qualification attempts of any male officers. PFR File, Tab 1 at 5-6. The appellant, however, does not provide a basis to disturb the administrative judge’s demeanor-based conclusion that the agency employee who elected to videotape her qualification attempt did so to ensure that her attempt met applicable standards, i.e., that the videotaping was not indicative of a discriminatory motive on part of any agency official. ID at 13; see Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (finding that the Board must defer to an administrative judge’s demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly discussed”). Thus, a different outcome is not warranted.4 Accordingly, we affirm the initial decision. 4 We have considered all of the appellant’s remaining arguments, including her assertions that the agency videotaped her qualification attempt without her consent and that agency employees scored her attempt in front of a male coworker; however, we find that none compel a different outcome. PFR File, Tab 1 at 6. 7 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.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.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. 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	Pierson_Michelle_M_CH-0752-22-0321-I-1_Final_Order.pdf	2024-08-28	MICHELLE M. PIERSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0752-22-0321-I-1, August 28, 2024	CH-0752-22-0321-I-1	NP
612	https://www.mspb.gov/decisions/nonprecedential/Haile_Teshale_M_DC-0752-21-0046-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TESHALE HAILE, Appellant, v. SMITHSONIAN INSTITUTION, Agency.DOCKET NUMBER DC-0752-21-0046-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Teshale Haile , Alexandria, Virginia, pro se. Deborah McArthur and R. Sabra Jafarzadeh , Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed the appeal of his termination for lack of jurisdiction . On petition for review, the appellant does not challenge the administrative judge’s jurisdictional finding and merely states that if the Board lacks jurisdiction over his appeal, he 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). “respectfully accept[s] [the] decision,” and that he will “move on to other Federal Agencies to seek fair justice.” 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 addressed by the administrative judge in the initial decision, we recognize that in the final agency decision the agency erroneously informed the appellant that he had the right to appeal his termination to the Board. Initial Appeal File, Tab 1 at 19-20. However, the agency’s erroneous notice to the appellant concerning his appeal rights does not confer jurisdiction on the Board. Barrand v. Department of Veterans Affairs , 112 M.S.P.R. 210, ¶ 13 (2009) (finding that the Board’s jurisdiction cannot be expanded by an agency’s erroneous notice of appeal rights), aff’d, 370 F. App’x 85 (Fed. Cir. 2009); Nabors v. U.S. Postal Service , 31 M.S.P.R. 656, 660 (1986) (same).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	Haile_Teshale_M_DC-0752-21-0046-I-1_Final_Order.pdf	2024-08-28	TESHALE HAILE v. SMITHSONIAN INSTITUTION, MSPB Docket No. DC-0752-21-0046-I-1, August 28, 2024	DC-0752-21-0046-I-1	NP
613	https://www.mspb.gov/decisions/nonprecedential/Lewis_LynettePH-0752-20-0030-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LYNETTE LEWIS, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER PH-0752-20-0030-I-1 DATE: August 28, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lynette Lewis , Baltimore, Maryland, pro se. Julie Tong , Esquire, Jennifer Karangelen , Esquire, and Daniel Hutman , Esquire, Baltimore, Maryland, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her appeal with prejudice as a sanction for her repeated failures to obey 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 administrative judge’s discovery-related orders. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute 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 filed an appeal of her removal based on three charges, misuse of a government computer (37 specifications), conduct unbecoming (2 specifications), and lack of candor (8 specifications). Initial Appeal File (IAF), Tab 1, Tab 6 at 44-65. The administrative judge issued an acknowledgment order setting forth, among other things, the Board’s discovery process, and the agency timely served the appellant with interrogatories and requests for the production of documents and noticed her deposition. IAF, Tab 2 at 3, Tab 28 at 11-12, Tab 32 at 13-26. After extensive proceedings, the administrative judge dismissed this appeal with prejudice as a sanction for the appellant’s willful failure to comply with multiple orders concerning discovery, both written and by deposition. Initial Appeal File (IAF), Tab 63, Initial Decision, (ID) at 9-12. He also found that the appellant filed fraudulent evidence in an attempt to mislead the Board into believing that she had supplemented her2 written discovery responses in compliance with the administrative judge’s order. ID at 13-15. The chronology of the appellant’s failure to respond to the administrative judge’s orders on discovery is recounted in significant detail in the initial decision, but we set forth the relevant facts below. ID at 2-7. We first address the appellant’s failure to respond to the agency’s written discovery requests, then address her false assertion that she adequately responded by supplementing her discovery responses, and finally address her failure to answer relevant deposition questions. The administrative judge found that the appellant failed to comply with his orders to respond to the agency’s written discovery. The appellant timely responded to the agency’s written discovery, but her response to each of the agency’s interrogatories and requests for production asserted that: Ms. Lewis’s VA disability requires that you use Lynette Lewis’s response to her rebuttal to the proposal to removal, for all the information you are requesting. Ms. Lewis’s traumatization and the financial hardship that SSA has caused her due to them firing her, doesn’t allow her access to these records. IAF, Tab 32 at 33-36, 41-46. The agency timely filed a motion to compel, and the appellant failed to contest the motion within the time period allowed under the Board’s regulations.2 IAF, Tab 32, Tab 35 at 1. The agency also filed a motion for sanctions. IAF, Tab 34. The administrative judge granted the motion to compel and issued a January 7, 2020 order requiring the appellant to file responses to the agency’s discovery within 7 days and warning her that a failure to comply may result in the imposition of sanctions. IAF, Tab 35. The appellant filed a January 14, 2020 response, arguing that the agency already had the information it sought in her reply to the agency’s proposed removal and in her 2 Although the administrative judge found that the appellant’s objections to the agency’s written discovery were untimely raised, he nevertheless considered them and determined they were not valid. IAF, Tab 61, ID at 9-10 n.3. As discussed below, we agree with the administrative judge’s analysis. 3 EEO case. IAF, Tab 37 at 4-5. She provided no further response to the agency’s discovery requests. In a January 24, 2020 conference call, the administrative judge ordered the appellant, for a second time, to provide full and complete responses to the agency’s written discovery, due on or before January 29, 2020. IAF, Tab 40 at 2. This time, he warned her that her “failure to comply with this order will result in the imposition of sanctions, pursuant to 5 C.F.R. § 1201.43, up to and including dismissal of this appeal.” Id. (emphasis in original). The appellant did not comply.3 Instead, the appellant filed a February 10, 2020 request for a protective order, arguing, among other things, that the agency’s discovery requests were unreasonably duplicative, unduly burdensome or expensive, and obtainable from another source. IAF, Tab 42 at 6. The administrative judge immediately denied the request, finding it untimely in light of the appellant’s continued resistance to his multiple orders to respond to the agency’s written discovery. IAF, Tab 43 at 1. He also found that the appellant had failed to show that any limitation on the agency’s discovery requests was warranted. Id. at 1-2. He ordered her, for a third time, to comply with his orders to continue and complete discovery. Id. at 2. The agency then filed a third motion for sanctions, requesting that the administrative judge dismiss the appeal with prejudice. IAF, Tab 45. Because it was unclear whether the appellant had ever supplemented her discovery responses, the administrative judge subsequently ordered the agency to clarify whether the appellant had supplemented her responses. IAF, Tab 51 at 2. He ordered the appellant, in pertinent part, to show cause why her appeal should not be dismissed with prejudice as a sanction for her multiple failures to comply 3 On January 29, 2020, the appellant submitted to the agency a discovery response from a different Board appeal, an individual right of action appeal which the administrative judge had dismissed without prejudice on January 28, 2020. IAF, Tab 48 at 4-25, Tab 50 at 7-8, Tab 51 at 1; Lewis v. Social Security Administration , MSPB Docket No. PH-1221-20-0085-W-1, Initial Decision (Jan. 28, 2020). This submission prompted the administrative judge to inquire, among other things, whether the appellant had ever supplemented her discovery responses in this appeal. IAF, Tab 51 at 2. 4 with his orders to provide full and complete responses to the agency’s written discovery. Id. The administrative judge found that the appellant submitted fraudulent evidence asserting that, in a March 1, 2020 email, she had supplemented her responses to the agency’s written discovery . In an April 6, 2020 conference call, the appellant asserted that she believed that she had supplemented her discovery responses, and the administrative judge ordered her to submit those responses. IAF, Tab 58 at 2. In response, she asserted that she had done so on March 1, 2020, and she included a screenshot of her Gmail account as proof of her assertion. IAF, Tab 59 at 5, 27. The agency replied that, despite extensive searching, it had no record of receiving the appellant’s March 1, 2020 email and noted, among other things, that the screenshot the appellant provided as proof that she had supplemented her discovery responses did not indicate that the email with the supplemental discovery response had actually been sent. IAF, Tab 60 at 7-8. The administrative judge found in an April 30, 2020 order that the agency had raised serious allegations that the appellant had falsely claimed that she had supplemented her discovery response on March 1, 2020, and he ordered the appellant to address the agency’s allegations. IAF, Tab 61 at 3-4. The appellant responded, but she failed to address the agency’s allegations as she was ordered; she instead argued that the agency had committed multiple fraudulent acts in an effort to get her case dismissed. IAF, Tab 62 at 1-9. The administrative judge ultimately determined that the appellant had falsely claimed that she had supplemented her discovery responses in her March 1, 2020 email to the agency. ID at 11. He found that she had instead done so on April 8, 2020, which was 4 months after the responses were due, and 11 weeks after the deadline he set for her to respond when he granted the agency’s first motion to compel. Id. After considering the evidence before him, the administrative judge was “left with the firm conviction that the appellant did not serve her supplemental discovery5 responses on the agency on March 1, 2020,” and he determined that the evidence she submitted, as well as the declaration she made in her April 8, 2020 pleading saying she had served the discovery responses on the agency on March 1, 2020, were therefore false. ID at 15. The administrative judge found that the appellant failed to answer deposition questions after he had ordered her to do so . As noted above, on November 20, 2019, the agency timely served notice that it would depose the appellant at its office on December 18, 2019. IAF, Tab 28 at 11-12. The appellant filed a December 4, 2019 motion for a protective order requesting that the deposition be held telephonically because, among other things, she claimed that she did not feel safe at the agency’s headquarters and could not afford to drive there for the deposition. IAF, Tab 26 at 5. The agency then filed a motion to compel an in-person deposition, in which, among other things, it offered to hold the deposition at a neutral location, such as the court reporter’s office. IAF, Tab 28 at 5-7. In a December 12, 2019 conference call summary, the administrative judge noted the parties’ subsequent agreement to cooperate to schedule an in-person deposition in January 2020. IAF, Tab 31 at 2. In its first motion for sanctions, the agency alleged that the appellant had failed to cooperate on setting a deposition date. IAF, Tab 34 at 6-7. The administrative judge denied the motion for sanctions and ordered the appellant to cooperate in rescheduling her deposition to be held in January 2020. IAF, Tab 35 at 2. He noted that the agency may refile its motion at any time if the appellant failed to comply with the order. Id., n.2. The agency’s second motion for sanctions alleged, in pertinent part, that the appellant had again failed to cooperate in scheduling her deposition and requested that the administrative judge dismiss the appeal with prejudice as a sanction. IAF, Tab 38 at 5-7. In a January 24, 2020 conference call summary, the administrative judge noted that the parties had reached another agreement to hold the appellant’s deposition, either on February 12, 2020, or if that date was6 not possible, to cooperate to hold it within 1 week of that date. IAF, Tab 40 at 2. Nevertheless, on February 10, 2020, the appellant filed another motion for a protective order, which the administrative judge immediately denied as untimely in light of her continued resistance to his orders to answer the agency’s written discovery and to cooperate in scheduling her deposition. IAF, Tab 43 at 1. He also found that the appellant had failed to show that the agency’s deposition or discovery questions should be limited, and he therefore ordered her to comply with his prior orders concerning discovery or face sanctions. Id. at 1-2. The deposition was held on February 12, 2020, and in its third motion for sanctions, the agency explained that, among other things, the appellant had refused to answer a series of questions concerning her current employment and financial circumstances. IAF, Tab 47 at 8, 27-28, 43-46. The parties contacted the administrative judge during the deposition, and he explained to the appellant that the information the agency sought was discoverable and instructed her to answer the agency’s questions or face sanctions for her continued noncompliance. Id. at 8-9, 102-03. Nevertheless, after the parties concluded their conference call with the administrative judge, the appellant continued to refuse to answer the agency’s questions. Id. at 108-09. Although the appellant subsequently abandoned her back pay claim, such that the agency’s questions about her finances were arguably not relevant, the administrative judge found that in the absence of any evidence that the appellant had made the decision to waive her back pay at the time of the deposition, or had asserted such a waiver as a basis for objecting to the questions at the deposition, her noncompliance merited significant weight in determining an appropriate sanction. ID at 12, n.6. The administrative judge dismissed the appeal with prejudice as a sanction, and the appellant has filed a petition for review of the initial decision . The administrative judge ultimately concluded that the appellant’s failure to comply with his orders to provide full and complete answers to the agency’s written discovery and her refusal to answer deposition questions were both willful7 and showed clear evidence of bad faith in the prosecution of her appeal. ID at 12. Accordingly, he dismissed the appeal with prejudice. ID at 12, 15-16. On review, the appellant argues that the agency’s discovery requests were unduly burdensome and intended to cause her a financial strain. Petition for Review (PFR) File, Tab 2 at 5-7.4 She reiterates that the agency’s confiscation of her work computer when it put her on administrative leave prior to her removal left her without access to the information she needed to answer the agency’s questions. Id. at 6-7, 9. Nevertheless, she also claims that her answers were sufficient. Id. at 10. She similarly reiterates her assertion that she had already provided the same or similar information in her EEO matter that the agency sought in its discovery requests in this appeal. Id. Concerning the administrative judge’s finding that she fraudulently asserted that she had supplemented her responses to the agency’s written discovery, the appellant states that the agency or the administrative judge could have asked her to send them the email directly to verify its authenticity, but they did not ask her to do so. Id. at 12. Regarding her deposition, the appellant contends on review that the agency’s questions were outside the scope of her appeal, and the deposition itself was intended to “harass, embarrass, harm, impede, or needlessly impose a cost or burden” on her. Id. at 10. She claims that she did not feel safe answering the agency’s questions about her financial situation due to her pending EEO complaint. Id. at 8. She explained that she did not want the agency to retaliate against current and future job opportunities and that, despite her disabilities of post-traumatic stress disorder (PTSD) and military sexual trauma (MST), the administrative judge ignored her request for a protective order. Id. She also claims that the administrative judge ignored a letter from her therapist alleging that agency counsel mocked her at her deposition. Id. at 9; IAF, Tab 56 at 20. 4 The appellant filed an Amended Petition for Review which is virtually identical to her Petition for Review, save for several references in the amended version concerning her EEO matter. PFR File, Tab 2 at 4-5, 9. 8 The appellant also asserts that the administrative judge was biased against her. PFR File, Tab 2 at 7-8, 12, 15-16. She challenges the administrative judge’s processing of her appeal and claims that he failed to address her due process claim. Id. at 10, 12-13, 15-16. The agency has filed a response to the appellant’s petition for review, and the appellant has filed a reply to the agency’s response. PFR File, Tabs 4-5. DISCUSSION OF ARGUMENTS ON REVIEW The appellant failed to show that the administrative judge abused his discretion when he dismissed the appeal as a sanction for her failure to comply with his discovery orders . It is well settled that administrative judges have broad discretion to regulate the proceedings before them, including the authority to rule on discovery motions and to impose sanctions as necessary to serve the ends of justice. Defense Intelligence Agency v. Department of Defense , 122 M.S.P.R. 444, ¶ 16 (2015); Roth v. Department of Transportation , 54 M.S.P.R. 172, 175-76 (1992), aff’d per curiam , 988 F.2d 130 (Fed. Cir. 1993) (Table); see 5 C.F.R. § 1201.43 (discussing the circumstances under which an administrative judge may impose sanctions, including failure to comply with an order). The extreme sanction of dismissal with prejudice should be imposed only when a party has failed to exercise basic due diligence in complying with any order, or when a party has exhibited negligence or bad faith in its efforts to comply. Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 7 (2011); see Roth, 54 M.S.P.R. at 176-77. Concerning the imposition of sanctions for a party’s failure to comply with discovery-related rulings, the Board will consider the reason for the party’s failure to comply in determining what sanction to impose, but if the party’s discovery violation is found to be willful, the Board may dismiss the appeal based on just a single failure to obey a discovery order. Roth, 54 M.S.P.R. at 176. The imposition of sanctions is a matter within the administrative judge’s sound discretion, and the Board will not find that the decision constitutes reversible9 error absent a showing that such discretion has been abused. Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 11 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012). Here, the administrative judge found that the appellant willfully failed to comply with multiple orders instructing her to provide full and complete responses to the agency’s written discovery. ID at 9-12. He also found that she refused to answer specific questions at her deposition after he had explained to her that the information was discoverable and that she would receive a severe sanction if she refused to answer. ID at 12. On the basis of the appellant’s failure to comply with his discovery orders, and his finding that she submitted falsified evidence in response to another, he dismissed the appeal with prejudice as a sanction. ID at 15-16. As explained below, rather than explicitly challenge the administrative judge’s finding that she failed to comply with his discovery orders, the appellant generally reiterates her objections to the agency’s discovery efforts.5 However, 5 As noted above, the administrative judge found that the appellant’s objections to the agency’s written discovery were untimely raised. ID at 9 n.3; Tab 37 at 4-5; 5 C.F.R. § 1201.73(b), (d)(2) (requiring a response or objection to discovery be filed within 20 days of service of the discovery). The agency served its discovery on November 20, 2019, and the appellant’s objections were filed on January 14, 2020. IAF, Tab 32 at 13; Tab 37 at 4-5. The appellant also failed to respond to the agency’s motion to compel in a timely fashion. IAF, Tab 35 at 1. The agency served its motion to compel on the appellant electronically on December 9, 2019. IAF, Tab 28 at 34. Board regulations require that a party respond in opposition to a motion to compel within 10 days of the date of service of the motion. 5 C.F.R. § 1201.73(d)(3). The appellant filed numerous pleadings subsequent to the agency’s motion to compel, but she did not directly address the agency’s motion until January 14, 2020, when she asserted her first objections to the agency’s discovery requests, nearly 1 month after the agency served its motion on her. IAF, Tab 28 at 34, Tab 37 at 4-5. Thus, the administrative judge did not abuse his discretion in finding that the appellant’s response to the agency’s motion to compel, and her objections to the agency’s discovery requests, were both untimely. Cf. Fellhoelter v. Department of Agriculture , 568 F.3d 965, 977 (Fed. Cir 2009) (finding that, in the absence of good cause for the late filing of a motion to compel, the administrative judge did not abuse his discretion in denying the motion as untimely). Nevertheless, the administrative judge reviewed the appellant’s objections on the merits, and he determined that they were not valid because, for example, she had not filed any of the discovery responses from her EEO proceeding that purportedly contained the10 what is at issue on review is the appellant’s compliance with the administrative judge’s orders and the resulting dismissal of the appeal for failure to comply with those orders, not the appellant’s objections to the agency’s discovery requests. See Montgomery v. Department of the Army , 80 M.S.P.R. 435, ¶ 9 (1998) (finding that the agency’s objections to the appellant’s discovery requests were irrelevant to the imposition of sanctions for noncompliance with the administrative judge’s order to produce the materials). Because the record establishes that the appellant willfully failed to comply with multiple discovery orders issued in this appeal, the administrative judge did not abuse his discretion in dismissing the appeal with prejudice as a sanction. Williams, 116 M.S.P.R. 377, ¶¶ 9, 12; Roth, 54 M.S.P.R. at 176. Concerning the deposition, we agree with the administrative judge that the appellant’s failure to assert that she was waiving her back pay claim until after the deposition concluded supports a finding that she failed to comply with his order to answer the agency’s questions at the deposition and merits significant weight. ID at 12 n.6. This is yet another instance of the appellant failing to comply with the administrative judge’s discovery related rulings.6 That failure, when combined with the other failures, supports the administrative judge’s imposition of the sanction of dismissal of the appellant’s appeal. Roth, 54 M.S.P.R. at 176 (upholding a dismissal with prejudice based on a single willful failure to comply with an administrative judge’s discovery order). information that the agency requested, and, in any event, that action could not have included her removal, as that action is within the Board’s jurisdiction. ID at 9 n.3. We agree. The appellant identifies no reason in her petition for review to revisit the administrative judge’s findings concerning these objections. 6 To the extent that the appellant’s waiver of her potential back pay claim may indicate that her failure to obey the administrative judge’s order to answer the agency’s deposition questions may not support the imposition of sanctions in and of itself, it does not change the result here because the appellant’s multiple failures to obey the administrative judge’s orders concerning written discovery more than justify the sanction he imposed. ID at 9-12. Roth, 54 M.S.P.R. at 176. 11 Concerning the administrative judge’s finding that she fraudulently asserted that she had supplemented her responses to the agency’s written discovery, the appellant states that the agency or the administrative judge could have asked her to send them the email directly to verify its authenticity, but they did not ask her to do so. PFR File, Tab 2 at 12. However, it was not the agency’s burden to do so. The administrative judge ordered the appellant to address the agency’s argument that she had introduced fraudulent evidence to support her claim that she had supplemented her discovery responses in an email she sent to the agency on March 1, 2010. IAF, Tab 61 at 3-4. The appellant’s claim on review that she could have somehow refuted the assertion that she submitted fraudulent evidence if only the agency or the administrative judge had just asked her to do so is belied by the record, which shows that the administrative judge ordered the appellant to address the agency’s contentions that her evidence was fraudulent, and she simply failed to do so. The appellant failed to show that the administrative judge was biased against her . The appellant makes several assertions concerning the administrative judge’s handling of the proceedings, which we consider as claims of bias. She alleges on review that the administrative judge denied her motion for a protection order the same day she filed it because he was biased against her. PFR File, Tab 2 at 7-8; IAF, Tab 26, 42-43. She also asserts that bias prevented the administrative judge from following up to request an authentic copy of the March 1, 2020 email in which she allegedly supplemented her discovery response, PFR File, Tab 2 at 12. She also complains that the administrative judge rejected her pleading containing notes of a conference call, failed to rule on her due process claim, and held the agency to a different standard by failing to sanction it for its failure to respond to two of his orders. PFR File, Tab 2 at 15-16; IAF, Tab 23. In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies12 administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). The fact that an administrative judge has ruled against a party, or mere conclusory statements of bias, do not provide sufficient bases for disqualification. Lee v. U.S. Postal Service , 48 M.S.P.R. 274, 281 (1991). An administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). The appellant presents no evidence in support of her conclusory statements of bias, save for the fact that the administrative judge denied her motions. Her statements do not come close to overcoming the presumption of honesty and integrity that accompanies administrative adjudicators. Oliver, 1 M.S.P.R. at 386. Concerning the administrative judge’s April 30, 2020 order for the appellant to address the allegation that she had submitted fraudulent evidence, the appellant could have submitted the March 1, 2020 email in response herself, and her failure to do so does not show bias on the part of the administrative judge. PFR File, Tab 2 at 12; see IAF, Tab 61. As for her pleading including notes of the settlement conference, the administrative judge explained in an order that he rejected the pleading because the conference was informal, he did not make any rulings during the conference, and the notes contained inaccurate statements. IAF, Tab 23. Inasmuch as the conference concerned settlement, it is well established that settlement offers are inadmissible on the merits of a case, Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 3 n.2 (2016), and even if the administrative judge erred in deleting the notes, the appellant’s substantive rights were not harmed, 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). 13 As for her allegation that the administrative judge failed to rule on her due process claim, the appellant explains that her claim concerns the agency’s search of her work computer for evidence against her. PFR File, Tab 2 at 15. However, the appellant’s claim that the agency improperly searched her computer goes to the merits of her appeal and, like her objections to the agency’s discovery discussed above, is not relevant to the issue on review, i.e., the administrative judge’s imposition of a sanction for her noncompliance with his discovery orders. Montgomery, 80 M.S.P.R. 435, ¶ 9. Concerning her allegations that the administrative judge did not sanction the agency for its failure to respond to his March 13 and April 30, 2020 orders, the appellant’s argument is without merit as neither of those orders required a response from the agency.7 See IAF, Tab 55 at 2, Tab 61 at 4. The appellant also asserted that, in considering the appellant’s conduct during her deposition, the administrative judge ignored a letter from her therapist alleging that agency counsel mocked the appellant about her responses. PFR File, Tab 1 at 7, 10-11; IAF, Tab 56 at 20. Even if the administrative judge did not mention all of the evidence of record, it does not mean that he did not consider it in reaching his decision. Marques v. Department of Health and Human Services , 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). Moreover, neither the appellant nor her therapist explains what agency counsel said. Although the therapist alleged that agency counsel appeared to be trying to rattle the appellant, her description of the counsel’s behavior, e.g., dropping documents and using hostile facial expressions, even if true, does not establish that agency counsel mocked the appellant. IAF, Tab 56 at 20. Further, the questions for which the therapist alleged that the agency counsel mocked the appellant’s responses are the same ones concerning her finances that the administrative judge unsuccessfully ordered the appellant to answer. Id. IAF, 7 The administrative judge’s April 30, 2020 order provided that “[t]he agency may file evidence and argument in response to appellant’s filing,” but it did not require the agency to file a response. IAF, Tab 61 at 4 (emphasis supplied). 14 Tab 44 at 5-6; ID at 4. As for the appellant’s assertion that the administrative judge ignored her request for a protective order despite her alleged disabilities, the appellant misrepresents what occurred. PFR File, Tab 2 at 8. The record instead reflects that the parties reached a compromise concerning the appellant’s first request for a protective order, IAF Tab 26, Tab 31 at 2, and the administrative judge denied the appellant’s second request for a protective order as untimely, IAF, Tab 43 at 1. Again, the appellant fails to show that the administrative judge abused his discretion. Accordingly, we affirm the initial decision dismissing the appellant’s appeal as a sanction for her willful failure to comply with the administrative judge’s discovery orders. NOTICE OF APPEAL RIGHTS8 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although 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 8 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.15 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 obtain16 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 17 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must 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.9 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 9 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 18 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.19	Lewis_LynettePH-0752-20-0030-I-1_Final_Order.pdf	2024-08-28	LYNETTE LEWIS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-0752-20-0030-I-1, August 28, 2024	PH-0752-20-0030-I-1	NP
614	https://www.mspb.gov/decisions/nonprecedential/Castillejos_Ricardo_R_SF-0831-21-0145-M-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RICARDO R. CASTILLEJOS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER SF-0831-21-0145-M-1 DATE: August 27, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Rufus F. Nobles, I , Zambales, Philippines, for the appellant. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *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 a decision by the Office of Personnel Management (OPM) denying the appellant’s application for Civil Service Retirement System (CSRS) annuity benefits. 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 ¶2As further detailed in the initial decision, the appellant has a complicated history of Board appeals in an effort to obtain CSRS benefits for periods of employment with the Department of the Navy in Subic Bay, Philippines between 1974 and 1992. He filed his first Board appeal in 2015, which an administrative judge consolidated with the appeals of others before dismissing because OPM rescinded its reconsideration decisions to issue new ones. See Castillejos v. Office of Personnel Management , MSPB Docket No. SF-0831-15-0293-I-1, Initial Appeal File, Tab 1; Philippines Retirement Applicants v. Office of Personnel Management, MSPB Docket No. SF-0831-15-0304-I-1, Initial Decision (May 5, 2015). The appellant filed a second appeal in 2016 because OPM had yet to issue its new reconsideration decision, but the administrative judge dismissed the appeal for lack of jurisdiction when OPM indicated that it would soon do so. Castillejos v. Office of Personnel Management , MSPB Docket No. SF-0831-16-0719-I-1, Initial Decision (Oct. 27, 2016). ¶3In June 2017, OPM issued its decision denying the appellant’s application for CSRS benefits for service between 1974 and 1986, and the appellant challenged this in his third Board appeal, but the administrative judge affirmed. Castillejos v. Office of Personnel Management , MSPB Docket No. SF-0831-17-0586-I-1 (Castillejos III), Initial Appeal File, Tab 5 at 6 -7; Castillejos III, Initial Decision (Nov. 13, 2017). The appellant filed a petition for review, but the Board affirmed the administrative judge’s decision. Castillejos III, Final Order (Sept. 12, 2022). Although the appellant attempted to further challenge the matter with the Federal Circuit, the court ultimately dismissed the challenge as untimely. Castillejos v. Office of Personnel Management , No. 2023-1207, 2023 WL 2808067 (Fed. Cir. Apr. 6, 2023).2 ¶4Meanwhile, in December 2020, the appellant filed this, his fourth Board appeal. Castillejos v. Office of Personnel Management , MSPB Docket No. SF-0831-21-0145-I-1 ( Castillejos IV), Initial Appeal File (IAF), Tab 1. With this appeal, he attached a different decision by OPM, dated February 2020, that once again indicated that the appellant was not entitled to CSRS benefits. Id. at 9-10. The administrative judge dismissed the instant appeal based on collateral estoppel. IAF, Tab 8, Initial Decision (ID) at 5-7. However, the appellant submitted a timely challenge to the Federal Circuit without first filing a petition for review with the Board, and the court remanded the case for further adjudication. Castillejos v. Office of Personnel Management , No. 2022-1036, 2022 WL 2092864 (Fed. Cir. June 10, 2022). The court determined that collateral estoppel was not appropriate at the time of its application by the administrative judge in Castillejos IV because Castillejos III was not yet final. Id. But the court also indicated that the instant appeal, Castillejos IV, includes a claim not addressed in Castillo III, i.e., the appellant’s pursuit of CSRS benefits for his period of service between 1987 and 1992. Id. ¶5On remand from the court, the administrative judge attempted to further develop the record, to which the agency responded but the appellant did not. Castillejos v. Office of Personnel Management , MSPB Docket No. SF-0831-21-0145-M-1, Remand File (RF), Tabs 5-6. The administrative judge then issued a remand initial decision affirming OPM’s decision. RF, Tab 7, Remand Initial Decision (RID). She found that the appellant’s entire career involved positions not covered by CSRS, including temporary or indefinite appointments in the excepted service and one permanent position in the excepted service subject to the Filipino Employees Personnel Instructions. RID at 8-11. Therefore, the administrative judge concluded that the appellant did not prove that he was entitled to the deferred CSRS annuity he sought. Id. This remand initial decision explained that it would become final on January 24, 2023, unless the appellant filed a petition for review by that date. RID at 12.3 ¶6The appellant filed a petition for review that was dated January 10, 2023, but not postmarked until February 10, 2023. Castillejos v. Office of Personnel Management, MSPB Docket No. SF-0831-21-0145-M-1, Petition for Review (PFR) File, Tab 1. He subsequently filed another pleading, dated and postmarked February 13, 2023, stating that “[his] January 10, 2023 petition for review letter is hereby revised to edit the deadline for filing of my petition for review.” PFR File, Tab 3 at 1. The accompanying page mirrors the first page of his petition for review, except that it is dated February 10, 2023, instead of January 10, 2023. Id. at 2. ¶7The Clerk of the Board warned the appellant that his petition for review appeared untimely and provided instructions for establishing good cause. PFR File, Tab 2 at 1-2. When the appellant responded, he simply stated as follows: “I believed that my filing is timely filed, because it was filed after the 35 days grace period allowed, after the initial decision of the administrative judge has been final, by January 24, 2023, because it was postmarked February 10, 2023, as acknowledged.” PFR File, Tab 7 at 1. DISCUSSION OF ARGUMENTS ON REVIEW ¶8A 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 filing deadline only upon a showing of good cause for the delay in filing. E.g., Alvarado v. Office of Personnel Management , 113 M.S.P.R. 407, ¶ 4 (2010); Garcia v. Office of Personnel Management , 95 M.S.P.R. 597, ¶ 6 (2004); Abiera v. Office of Personnel Management , 90 M.S.P.R. 395, ¶ 4 (2001). 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.4 Alvarado, 113 M.S.P.R. 407, ¶ 4. 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 which similarly shows a causal relationship to his inability to timely file his petition. Id. ¶9In this case, the appellant is represented, and the original date on his petition suggests that he may have at least begun work on his petition in a timely manner, yet the petition is postmarked 18 days after the designated filing deadline. He has not presented any explanation for this untimeliness, aside from his reference to an unexplained “35 days grace period.” PFR File, Tab 7 at 1. Accordingly, we find that the appellant has not established good cause for his untimeliness, and we therefore dismiss his petition for review. See Garcia, 95 M.S.P.R. 597, ¶ 7 (dismissing a petition for review that was untimely by 19 days when the appellant was represented and did not show that he exercised due diligence). ¶10This 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 challenge to OPM’s February 2020 decision denying his application for CSRS benefits. 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	Castillejos_Ricardo_R_SF-0831-21-0145-M-1_Final_Order.pdf	2024-08-27	RICARDO R. CASTILLEJOS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-21-0145-M-1, August 27, 2024	SF-0831-21-0145-M-1	NP
615	https://www.mspb.gov/decisions/nonprecedential/McGivney_Susan_A_PH-844E-20-0315-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SUSAN MCGIVNEY, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER PH-844E-20-0315-I-1 DATE: August 27, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant. 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 denied her application for disability retirement under the Federal Employees’ Retirement System (FERS). On petition for review, the appellant restates her argument that she suffered from a number of conditions and that she could not 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). render useful and efficient service due to her conditions. 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. We agree with the administrative judge’s conclusion that the appellant has failed to show that her medical conditions caused a deficiency in her performance, attendance, or conduct, or that they were incompatible with useful and efficient service or retention in her position. Initial Appeal File (IAF), Tab 16, Initial Decision at 8-10; see Henderson v. Office of Personnel Management, 117 M.S.P.R. 313, ¶ 16 (2012); see also Jackson v. Office of Personnel Management , 118 M.S.P.R. 6, ¶ 7 (2012) (finding that the applicable standard is the same under both the Civil Service Retirement System and FERS). 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 With her petition for review, the appellant provides additional medical records and an affidavit dated December 4, 2020, discussing how her conditions have affected her daily functioning. Petition for Review (PFR) File, Tab 1 at 15-30. The appellant has not shown that any of this information is both new and material, so we have not considered it. See Okello v. Office of Personnel Management , 112 M.S.P.R. 563, ¶ 10 (2009 ) (noting that under 5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for the first time with a petition for review absent a showing that it is both new and material). Two of the medical records are dated November 9, 2017, and October 31, 2017, respectively, before the October 9, 2020 close of record in this case,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. and the appellant has not explained why they were not provided before the record closed. PFR File, Tab 1 at 23-30; IAF, Tab 17 at 3; see Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980 ) (explaining that, under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time on review absent a showing that it was unavailable before the record was closed despite the party’s due diligence). She has also provided what appears to be a third medical document identified as a “Medical Statement regarding [the appellant’s] treatment,” dated February 19, 2020, but the copy of the document is illegible. PFR File, Tab 1 at 13, 22. Finally, the appellant’s signed affidavit is dated December 4, 2020, after the record closed in this appeal. Id. at 15-21. However, all of the information contained in the affidavit was clearly available before the record closed, and the appellant has not explained why she failed to previously submit the affidavit, so we decline to consider 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 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.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. 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	McGivney_Susan_A_PH-844E-20-0315-I-1_Final_Order.pdf	2024-08-27	SUSAN MCGIVNEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-844E-20-0315-I-1, August 27, 2024	PH-844E-20-0315-I-1	NP
616	https://www.mspb.gov/decisions/nonprecedential/Kinnard_Barbara_A_AT-1221-23-0163-W-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BARBARA KINNARD, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-23-0163-W-1 DATE: August 27, 2024 THIS ORDER IS NONPRECEDENTIAL1 Georgia A. Lawrence , Esquire, and Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant. Seth J. Colon , Esquire, and Kathleen Pohlid , Esquire, Nashville, Tennessee, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action appeal (IRA) as untimely filed. 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, REVERSE the initial decision, and REMAND the case to the Atlanta Regional Office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2On October 12, 2022, the appellant, a GS-06 Advanced Medical Support Assistant, filed a complaint with the Office of Special Counsel (OSC), alleging that, in the period from 2015 to 2018, she filed OSC and equal employment opportunity (EEO) complaints and disclosed nepotism, favoritism, retaliation for whistleblowing, the agency’s failure to accommodate her disability, and a hostile work environment, causing the agency to retaliate against her by issuing an admonishment, charging her with absence without leave (AWOL), denying her request for training and promotional opportunities, subjecting her to an investigation, and proposing her removal. Initial Appeal File (IAF), Tab 1 at 4, 10, 17-18. In an October 12, 2022 email attaching its letters, OSC informed the appellant that it had terminated its inquiry into her allegations and that she had a right to file an IRA appeal with the Board within 65 days of the date of its close-out letter. IAF, Tab 10 at 12 -16. ¶3On January 18, 2023, the appellant filed the instant IRA appeal with the Board. IAF, Tab 1. Attached to the appeal was an October 12, 2022 email from OSC attaching the aforementioned letters. Id. at 12. In a January 25, 2023 order, the administrative judge notified the appellant that her IRA appeal appeared to have been filed approximately 1 month late and ordered her to submit evidence and argument on the timeliness issue. IAF, Tab 7 at 1-2. The appellant responded that she filed her OSC complaint on October 12, 2022, and emailed OSC on January 3, 2023, for an update on the status of her complaint. IAF, Tab 10 at 5, Tab 11 at 4. That same day, OSC informed her that her case had been closed on October 12, 2022, and reattached its letters and its October 12, 2022 transmittal email. IAF, Tab 1 at 13-14, Tab 11 at 4. The appellant2 acknowledged receipt of OSC’s January 3, 2023 email attachments and noted that she had not received prior emails or a response from OSC regarding her case. IAF, Tab 1 at 16. Without holding the appellant’s requested hearing, the administrative judge dismissed the appeal as untimely filed, finding that the appellant did not file her appeal within 65 days after the issuance of OSC’s close-out letter or allege circumstances warranting invocation of the doctrine of equitable tolling . IAF, Tab 19, Initial Decision (ID) at 3-5. ¶4The appellant has filed a petition for review of the initial decision.2 Petition for Review (PFR) File, Tab 1. She reiterates that she did not receive OSC’s October 12, 2022 email attaching its close-out letter and she diligently monitored her email and actively sought an update from OSC regarding her case; thus, she demonstrated that the filing deadline should be equitably tolled or that the time limit should be waived based on good cause shown.3 Id. at 6-8. The agency has responded in opposition to the petition for review. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW The appellant timely filed her appeal. ¶5On review, the appellant challenges the administrative judge’s finding that her appeal was untimely filed because she asserts that she first received email notification of OSC’s October 12, 2022 close-out letter on January 3, 2023. PFR 2 The appellant’s June 22, 2023 petition for review was untimely filed. However, in light of the May 17, 2023 initial decision’s incorrect notation of June 22, 2023, as the finality date, rather than June 21, 2023, ID at 5, the Office of the Clerk of the Board considered the appellant’s June 22, 2023 petition for review as timely filed, PFR File, Tab 2 at 1. We find that the appellant’s petition for review was timely filed under the circumstances presented here. 3 We clarify that the statutory time limit for filing an IRA appeal cannot be waived for good cause shown because there is no statutory mechanism for doing so. Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 9 (2014). However, the filing deadline might be subject to equitable tolling, under which the filing period is 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. Id., ¶ 10. We have not reached the issue of equitable tolling here.3 File, Tab 1 at 7. She notes that she examined her incoming, deleted, and spam emails from October 1, 2022, to October 20, 2022, but did not find any emails regarding OSC’s close-out letter.4 Id. ¶6An appellant may file an IRA appeal with the Board once OSC closes its investigation into her complaint and no more than 60 days have elapsed since notification of the closure was provided to her. 5 U.S.C. § 1214(a)(3)(A); see Heimberger, 121 M.S.P.R. 10, ¶ 6. Under the Board’s regulations implementing that statutory time limit, 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. 5 C.F.R. § 1209.5(a)(1); see Heimberger , 121 M.S.P.R. 10, ¶ 6. The appellant bears the burden of proving by preponderant evidence that she timely filed her appeal. 5 C.F.R. § 1201.57(c)(2); see Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526, ¶ 8, aff’d, 404 F App’x 466 (Fed. Cir. 2010). ¶7The administrative judge found that the appellant was required to file her appeal by December 16, 2022, 65 days after OSC issued the October 12, 2022 close-out letter. ID at 3; see 5 U.S.C. § 1214(a)(3)(A); 5 C.F.R. § 1209.5(a)(1). She found that, when the appellant filed her appeal on January 18, 2023, it was approximately 1 month late. ID at 3; IAF, Tab 1. Further, she found that, because the appellant’s delay of almost 3 months to check into the status of her OSC status complaint shows she was not diligently pursuing her rights, the appellant did not allege circumstances warranting invocation of the doctrine of 4 For the first time on review, the appellant attaches portions of an “email log” purportedly showing that she did not receive the October 12, 2022 email from OSC attaching its close-out letter. PFR File, Tab 1 at 11-20. The Board need not consider evidence presented for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980); 5 C.F.R. § 1201.115(d). The appellant does not explain why she did not provide this document in response to the administrative judge’s timeliness order. Nevertheless, as discussed below, we find that the appellant timely filed her appeal.4 equitable tolling. ID at 4. However, such an approach is inconsistent with the plain language of 5 C.F.R. § 1209.5(a)(1). ¶8When, as here, the appellant asserts that she did not receive OSC’s close-out letter within 5 days of its issuance, she must file the appeal within 60 days of the date of receipt. 5 C.F.R. § 1209.5(a)(1). The appellant responded to the administrative judge’s timeliness order and asserted that her appeal was timely filed because she did not originally receive OSC’s close-out letter. IAF, Tab 11 at 4. She indicated that she contacted OSC on January 3, 2023, at which point OSC informed her that it had sent its close-out letter to her on October 12, 2022, and reattached the close-out letter. Id. In so doing, she indicated on the online questionnaire that she was asserting facts from her personal knowledge and declared under penalty of perjury that the facts stated in her pleading were true and correct. Id. at 3. ¶9A declaration subscribed as true under penalty of perjury, if uncontested, proves the facts it asserts. Woodall v. Federal Energy Regulatory Commission , 30 M.S.P.R. 271, 273 (1986). The record does not contain evidence supporting a finding that the appellant actually received OSC’s email attaching its close -out letter on October 12, 2022, and the appellant’s statement that she did not receive the close-out letter until January 3, 2023 is uncontested.5 Accordingly, we find that the appellant has proven, through her sworn statement, that she was not notified of the close-out letter until she contacted OSC on January 3, 2023. ¶10Having found that the appellant’s sworn statement demonstrates that she was first notified of OSC’s close-out letter on January 3, 2023, we find that her 5 The appellant provided a copy of OSC’s October 12, 2022 email attaching its close-out letter, which was properly addressed to her email address, but there is no evidence in the record contradicting her assertion that her receipt of that email was delayed. IAF, Tab 1 at 12. The appellant did not dispute that she received OSC’s other emails, including OSC’s October 12, 2022 emails acknowledging receipt of her complaint and OSC’s January 3, 2023 email reattaching its close-out letter. IAF, Tab 1 at 13-14, 17-18, Tab 4 at 11. Nonetheless, the fact that the appellant received OSC’s other emails does not establish that she also received OSC’s October 12, 2022 email attaching its close-out letter on the date it was issued.5 appeal was timely filed. Because the appellant was notified of OSC’s close-out letter more than 5 days after its issuance, she was required to submit her appeal within 60 days of the date of this notice. 5 C.F.R. § 1209.5(a)(1). She submitted her appeal 15 days later, on January 18, 2023. IAF, Tab 1. Thus, we find that it was timely filed after she received notice of OSC’s close-out letter. We remand the appeal for the administrative judge to further develop the record and make findings on the issue of jurisdiction. ¶11Because we find that the appeal was timely filed, we turn to the issue of jurisdiction. The appellant may establish jurisdiction over this IRA appeal if she demonstrates by preponderant evidence that she exhausted her administrative remedy before OSC and makes nonfrivolous allegations of the following: (1) she made a protected whistleblowing disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected whistleblowing activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or activity was a contributing factor in the agency’s decision to take or fail to take, or threaten to take or fail to take, a personnel action. 5 U.S.C. §§ 1214(a)(3), 1221(e)(1); Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 14; Lewis v. Department of Defense , 123 M.S.P.R. 255, ¶ 7 (2016); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016); 5 C.F.R. § 1201.57(a)(1), (b), (c)(1); see Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1367 (Fed. Cir. 2020). In the initial decision, the administrative judge did not address the issue of jurisdiction because she found that the appeal was untimely filed. The record, as developed to this date, does not provide a sufficient basis for determining whether the appellant has established all of the elements of Board jurisdiction over her IRA appeal. Thus, we remand the appeal for the administrative judge to further develop the record and make findings on the issue of jurisdiction. If the administrative judge determines that the appellant established Board jurisdiction over her IRA appeal, she is entitled to a hearing on the merits of her claim, which she must prove by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5.6 ORDER ¶12For 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.7	Kinnard_Barbara_A_AT-1221-23-0163-W-1_Remand_Order.pdf	2024-08-27	BARBARA KINNARD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-23-0163-W-1, August 27, 2024	AT-1221-23-0163-W-1	NP
617	https://www.mspb.gov/decisions/nonprecedential/Tawfiq_Neri_M_CH-315H-21-0233-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NERI MANASSAH HAMID TAWFIQ, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-315H-21-0233-I-1 DATE: August 27, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Neri Manassah Hamid Tawfiq , Saginaw, Michigan, pro se. Gregory White , Esquire, Detroit, Michigan, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his probationary termination appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). We FORWARD his newly raised claim of discrimination based on his status as a veteran to the regional office for docketing as a new appeal under the Uniformed Services Employment and Reemployment Rights Act (USERRA). BACKGROUND The appellant was appointed to a Staff Pharmacist position in the excepted service on November 22, 2020, subject to the completion of a 1-year probationary period. Initial Appeal File (IAF), Tab 7 at 45, 47. On March 23, 2021, the agency terminated the appellant during his probationary period due to conduct issues. IAF, Tab 2 at 1-3, Tab 7 at 26, 28-31. The appellant subsequently filed a Board appeal alleging that the termination was based on false accusations and discrimination based on race and color. IAF, Tab 1 at 6. Although the appellant claimed that he was in the competitive service, the administrative judge noted that it appeared he was hired in the excepted service, informed the appellant of how to establish jurisdiction over his probationary termination accordingly, and ordered him to file evidence and argument establishing a nonfrivolous allegation of Board2 jurisdiction. IAF, Tab 1 at 1, Tab 6 at 1-7. The appellant did not respond to this jurisdictional order. The administrative judge subsequently issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1. Specifically, the administrative judge found that the appellant was in a probationary period and had not completed the current continuous service requisite for Board jurisdiction. ID at 2-4. She further found that the appellant did not allege that his termination was for preappointment reasons or that his termination was procedurally deficient. ID at 3-4. Finally, the administrative judge found that, absent an otherwise appealable action, the Board lacked jurisdiction over the appellant’s claims of discrimination. ID at 4. The appellant has filed a petition for review, generally arguing the merits of the agency’s termination action and reraising his discrimination claims. Petition for Review (PFR) File, Tab 1 at 4-5. He additionally attaches new evidence on review, including a hotline complaint to the agency’s Office of Inspector General and various emails regarding his termination. Id. at 6-27. The agency has responded to the petition for review. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge found that the appellant failed to establish that he was an “employee” for purposes of Board jurisdiction over adverse actions under 5 U.S.C. chapter 75. ID at 2-4. The appellant does not challenge this finding on review, and we decline to disturb it. A preference-eligible individual in the excepted service is an employee for purposes of Board jurisdiction only if he has completed 1 year of current continuous service in the same or similar positions. 5 U.S.C. § 7511(a)(1)(B); Allen v. Department of the Navy , 102 M.S.P.R. 302, ¶¶ 7-9 (2006). The appellant asserted that he is a preference-eligible veteran, and the record reflects that his veteran status renders him a preference eligible. 5 U.S.C. § 2108(3); IAF, Tab 1 at 1, 6, Tab 7 at 26, 45. Nonetheless, the3 appellant worked for the agency for only 4 months before he was terminated. IAF, Tab 7 at 26-28, 47. On his appeal form, the appellant claimed to have 2 years and 2 months of Government service. IAF, Tab 1 at 1. However, he has not further explained this bare assertion, and he has failed to allege any facts about any prior civilian service that, if proven, could establish that he had completed 1 year of current continuous service in the same or similar positions. 5 C.F.R. § 1201.4(s) (defining a nonfrivolous allegation as an assertion that, if proven, could establish the matter at issue). Thus, we find no basis to disturb the administrative judge’s conclusion that the appellant failed to make a nonfrivolous allegation that he was an “employee” with Board appeal rights under 5 U.S.C. chapter 75. See 5 U.S.C. § 7511(a)(1)(B); Allen, 102 M.S.P.R. 302, ¶ 9. The appellant challenges the merits of the agency’s termination, arguing that it was unlawful and based on false accusations, and that the agency failed to investigate the truth of any accusations. PFR File, Tab 1 at 4-5. These arguments pertain to the merits of the agency’s action and do not address the jurisdictional issue. The Board must first resolve the threshold issue of jurisdiction before proceeding to the merits of an appeal. Barrand v. Department of Veterans Affairs, 112 M.S.P.R. 210, ¶ 11 (2009). The appellant additionally argues that the removal was discriminatorily based on race and color, and that the agency created a hostile work environment. PFR File, Tab 1 at 4-5. It is well established, however, that the Board lacks jurisdiction to hear claims of discrimination absent an otherwise appealable action. Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867 (D.C. Cir. 1982). In sum, we find that the administrative judge properly dismissed the appellant’s appeal for lack of jurisdiction. However, for the first time on review, the appellant appears to assert that his termination was discrimination based on his status as a veteran, which could be a violation of USERRA.2 PFR File, Tab 1 2 The appellant referenced being a disabled veteran in his initial appeal, but he made no allegation that the termination was based on his status as a veteran sufficient to prompt the administrative judge to address the issue. IAF, Tab 1 at 6. 4 at 4-5, 7; see 38 U.S.C. § 4311(a). The Board applies a liberal approach to USERRA jurisdiction, and an appellant need only allege that (1) he served in the military, (2) he was denied initial employment, reemployment, retention in employment, promotion, or a benefit of employment, and (3) the denial was due to his service in the military. Beck v. Department of the Navy , 120 M.S.P.R. 504, ¶ 8 (2014). Because the Board may have jurisdiction over the appellant’s USERRA claim, we forward this matter to the Central Regional Office for processing as a separate USERRA appeal. See Maibaum v. Department of Veterans Affairs , 116 M.S.P.R. 234, ¶ 20 (2011) (forwarding a USERRA claim to the regional office for docketing); see also Roberson v. U.S. Postal Service , 77 M.S.P.R. 569, 571 (1998) (finding that individuals who have not completed 1 year of current continuous service in the same or similar positions may nonetheless qualify as “persons” under USERRA and thus are not excluded from filing appeals under the provisions of that statute); 5 C.F.R. § 1208.12 (stating that there is no time limit for filing a USERRA appeal with the Board). The Board would be exercising its jurisdiction over this new appeal as a complaint under 38 U.S.C. § 4324(c), and thus any future adjudication will be limited to consideration of the appellant’s claim under USERRA. See Nahoney v. U.S. Postal Service, 112 M.S.P.R. 93, ¶ 20 (2009). 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 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. 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. Contact information for the courts of appeals can be 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	Tawfiq_Neri_M_CH-315H-21-0233-I-1_Final_Order.pdf	2024-08-27	NERI MANASSAH HAMID TAWFIQ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-315H-21-0233-I-1, August 27, 2024	CH-315H-21-0233-I-1	NP
618	https://www.mspb.gov/decisions/nonprecedential/Hartman_James_H_DE-3443-23-0264-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES H. HARTMAN, III, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER DE-3443-23-0264-I-1 DATE: August 27, 2024 THIS ORDER IS NONPRECEDENTIAL1 James H. Hartman , III , Mesa, Arizona, pro se. Lindsay M. Nakamura , El Segundo, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his 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 field office for further adjudication in accordance with this Remand Order. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 has been employed with the Federal Aviation Administration since 2008, when he was hired as an FV-0343-H Management and Program Analyst for the Aviation Weather Office in Washington, D.C. Initial Appeal File (IAF), Tab 1 at 5, 129. In 2014, he accepted his current position as an FV-0343-G Management Program Analyst for the Quality Control Group in Pheonix, Arizona, which is a lower-graded position than his former position. Id. at 5, 130; IAF, Tab 14 at 4. In his Board appeal, he alleged that he accepted the 2014 “demotion” because he was informed by the facility manager that there would be promotional potential for him at that facility, “but that was not the case.” IAF, Tab 1 at 5. He contended that he has since been denied advancement opportunities because of age, race, and sex discrimination. Id. at 5-6. ¶3The administrative judge notified the appellant that the Board may not have jurisdiction over his claim, which he construed as a request for pay grade and salary increase. IAF, Tab 3 at 1. He afforded the appellant an opportunity to provide evidence and argument that his appeal is within the Board’s jurisdiction, but he did not provide the appellant with explicit information on what was required to establish the Board’s jurisdiction over an involuntary or constructive demotion claim. Id. at 1-3. Both parties responded to the administrative judge’s jurisdictional order. IAF, Tabs 12, 86, 87. The appellant asserted, among other things, that he accepted the demotion based on “false indications of promotion opportunities,” IAF, Tab 87 at 5, and that his demotion and reduction in grade clearly fell within the purview of the Board’s jurisdiction, id. at 4. ¶4Without holding the appellant’s requested hearing, the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 88, Initial Decision (ID). He found that the appellant’s use of the term “demotion” was conclusory and pro forma and thus did not constitute nonfrivolous allegations of Board jurisdiction. ID at 2 n.3. He further found that, in the absence of an otherwise appealable2 action, the Board lacks jurisdiction over the appellant’s discrimination claims. ID at 3. ¶5The appellant has filed a petition for review, asserting that the administrative judge did not adequately consider his claim of an “unwilling demotion.” Petition for Review (PFR) File, Tab 6 at 5. He argues that he was “subtly coerced/compelled to accept an unwilling demotion based on false promises of promotion opportunities.” Id. The agency has responded in opposition to the appellant’s petition for review, contending that the appellant raised a claim of coerced demotion for the first time on review and is precluded from doing so absent a showing that the argument was previously unavailable. PFR File, Tab 9 at 7-8. The appellant has replied to the agency’s response. PFR File, Tab 10. ANALYSIS ¶6An employee’s acceptance of a lower-graded position is generally considered to be voluntary and not subject to the Board’s jurisdiction. Reed v. U.S. Postal Service , 99 M.S.P.R. 453, ¶ 12 (2005), aff’d, 198 F. App’x 966 (Fed. Cir. 2006). However, an appellant may show that such an action was involuntary, and thus subject to the Board’s jurisdiction, by presenting sufficient evidence to establish that the action was obtained through duress or coercion or showing that a reasonable person would have been misled by the agency. Id.; see also McGarigle v. U.S. Postal Service , 36 M.S.P.R. 610, 615 (1988) (stating that an appellant’s reassignment could be involuntary if the agency made misleading statements upon which the employee reasonably relied to his detriment in requesting the reassignment). A jurisdictional hearing is required only if the employee makes a nonfrivolous allegation that, if proved, would establish Board jurisdiction. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643 (Fed. Cir. 1985). However, before an appeal may be dismissed for lack of jurisdiction3 without a hearing, an appellant must be apprised of what he must allege to establish Board jurisdiction over his appeal. Id. at 643-44. ¶7Although, here, the appellant did not explicitly use the terms “constructive demotion” or “involuntary demotion” in his pleadings, he raised allegations of misleading statements by the agency alluding to an involuntary demotion. IAF, Tab 1 at 5-6, Tab 87 at 5-6. Furthermore, he reraises and further clarifies his claim of an “unwilling demotion” based on “coercion” or “false promises” on review. PFR File, Tab 6 at 5. We note that the appellant is pro se before the Board and, as such, is not expected to frame issues with the precision of a common law pleading. See Roche v. U.S. Postal Service , 828 F.2d 1555, 1558 (Fed. Cir. 1987); see also Lewis v. U.S. Postal Service , 82 M.S.P.R. 254, ¶ 5 (1999). Based on his pleadings before the administrative judge, we find that the appellant was entitled to notice of the requirements for establishing the Board’s jurisdiction over his alleged involuntary demotion. See Burgess, 758 F.2d 641, 643-44. Because the appellant did not receive proper Burgess notice, nor was this defect cured by the agency’s pleadings or the initial decision, we must remand the appeal to afford the appellant an opportunity to establish jurisdiction based on an adequate jurisdictional notice. See, e.g., Lewis, 82 M.S.P.R. 254, ¶ 11; Milam v. Department of Agriculture , 99 M.S.P.R. 485, ¶ 10 (2005). ¶8If the appellant establishes on remand the Board’s jurisdiction over his alleged involuntary demotion, the appellant will also bear the burden of proof regarding timeliness. 5 C.F.R. § 1201.56(b)(2)(i)(B); see Popham v. U.S. Postal Service, 50 M.S.P.R. 193, 196-97 (1991) (holding that the existence of Board4 jurisdiction is the threshold issue in adjudicating an appeal).2 It appears that the appellant’s involuntary demotion claim was not timely filed, as he alleged that his involuntary demotion occurred in July 2014, and he did not file his appeal until June 6, 2023. IAF, Tab 1 at 1, 5; see 5 C.F.R. § 1201.22(b). However, even if an appeal is untimely filed, the Board may hear the appeal if the appellant establishes a good cause for the delay. 5 C.F.R. § 1201.22(c); Higgins v. U.S. Postal Service, 84 M.S.P.R. 64, ¶ 7 (1999). On remand, if the appellant establishes the Board’s jurisdiction, the administrative judge should also advise the appellant of what is required to establish that his appeal was timely filed or that good cause existed for the delay and shall afford the parties an opportunity to offer additional evidence and argument concerning these issues.3 See Tedesco v. Department of the Air Force , 90 M.S.P.R. 367, ¶ 11 (2001); Higgins, 84 M.S.P.R. 64, ¶ 7 (1999). 2 Although a jurisdictional determination may not be required when the Board, by assuming arguendo that it has jurisdiction over an appeal, finds that the appeal can be properly dismissed on timeliness or other grounds, Popham, 50 M.S.P.R. at 196-97, such an approach may be inappropriate under the circumstances of this case, see Ginsiorsky v. U.S. Postal Service , 68 M.S.P.R. 548, 550-51 (1995) (explaining that a timeliness dismissal is not appropriate when the jurisdictional and timeliness issues are “inextricably intertwined”; that is, if resolution of the timeliness issue depends on whether the appellant was subjected to an appealable action); see also Gingrich v. U.S. Postal Service, 67 M.S.P.R. 583, 584 (1995). 3 If the appellant establishes a factual dispute as to whether there is good cause for an untimely filing, he is entitled to a timeliness hearing. See Braxton v. Department of the Treasury, 119 M.S.P.R. 157, ¶ 11 (2013).5 ORDER ¶9For the reasons discussed above, we remand this appeal 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.6	Hartman_James_H_DE-3443-23-0264-I-1_Remand_Order.pdf	2024-08-27	null	DE-3443-23-0264-I-1	NP
619	https://www.mspb.gov/decisions/nonprecedential/Kaminski_Timothy_J_SF-0752-20-0744-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TIMOTHY J. KAMINSKI, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER SF-0752-20-0744-I-1 DATE: August 27, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Timothy J. Kaminski , San Diego, California, pro se. Katerina L. Chau , San Diego, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his removal appeal as untimely filed without good cause shown. On petition for review, the appellant argues, among other things, that his appeal was timely filed because he did not receive the agency’s removal decision until approximately 6 months after the agency sent it to him. Generally, we grant 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). 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 2 The appellant’s deadline to file his petition for review was March 12, 2021. Initial Appeal File, Tab 15, Initial Decision at 7. Per 5 C.F.R. § 1201.14(l)(1), all pleadings filed via e-Appeal are time stamped with Eastern time. Therefore, while the time stamp indicates that the appellant filed his petition for review on March 13, 2021 at 6:12 a.m., because the appellant is located in California, he actually filed his petition for review at 3:12 a.m., approximately three hours past the deadline. Petition for Review File, Tab 1. The appellant also claimed, under penalty of perjury, that he received the initial decision 2 weeks after the administrative judge issued the initial decision. Id. at 3. However, because we agree with the administrative judge that the removal appeal was untimely filed without good cause shown, we decline to address whether the appellant’s petition for review was timely filed, or whether good cause exists to waive the petition for review deadline. 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	Kaminski_Timothy_J_SF-0752-20-0744-I-1_Final_Order.pdf	2024-08-27	TIMOTHY J. KAMINSKI v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0744-I-1, August 27, 2024	SF-0752-20-0744-I-1	NP
620	https://www.mspb.gov/decisions/nonprecedential/Schooley_Travis_G_PH-1221-22-0045-W-2_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TRAVIS GARY SCHOOLEY, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER PH-1221-22-0045-W-2 DATE: August 27, 2024 THIS ORDER IS NONPRECEDENTIAL1 Reginald L. Tolbert , Chambersburg, Pennsylvania, for the appellant. Joleen Payeur Olsen , Esquire, Chambersburg, Pennsylvania, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For the reasons set forth below, we GRANT the petition for review, VACATE the initial decision, and REMAND this matter 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). BACKGROUND ¶2According to the appellant, he has a long history of involvement in political affairs in Franklin County, Pennsylvania, and its various municipalities, including running for elected office, serving on the Republican Committee, advocating for and against candidates, and supporting taxpayer and citizen causes. Schooley v. Department of the Army , MSPB Docket No. PH-1221-22-0045-W-1, Initial Appeal File (W-1 IAF), Tab 7 at 11, 18-21. In 2019, while an employee of Quincy Township, a municipality within Franklin County, the appellant disclosed water quality issues to the Pennsylvania Department of Environmental Protection. W-1 IAF, Tab 1 at 13, Tab 7 at 25-26. Thereafter, between February 2020 and March 2021, investigators from the Pennsylvania Attorney General’s Office and the Federal Bureau of Investigation met with the appellant multiple times concerning their investigation into alleged wrongdoing by a township supervisor while the appellant was employed by the township and ultimately subpoenaed the appellant to appear before a grand jury. W-1 IAF, Tab 1 at 29-31, 40, 44. ¶3Meanwhile, on January 21, 2021, the agency appointed the appellant to a GS-11 Community Planner position in the competitive service at Letterkenny Army Depot (LEAD), which is located in Franklin County, Pennsylvania. W-1 IAF, Tab 1 at 76. The appointment was subject to a 2-year probationary period.2 Id. ¶4On June 15, 2021, the appellant reported his involvement in the investigation by the Pennsylvania Attorney General’s Office and the Federal 2 Congress enacted the National Defense Authorization Act for Fiscal Year 2016 (2016 NDAA) on November 25, 2015. Pub. L. No. 114-92, 129 Stat. 726. The 2016 NDAA extended the probationary period for an individual appointed to a permanent competitive service position at the Department of Defense to a 2-year probationary period and provided that such individual only qualifies as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) if he has completed 2 years of current continuous service. Pub. L. No. 114-92, § 1105, 129 Stat. 726, 1023-24 (codified, as relevant here, at 10 U.S.C. § 1599e and 5 U.S.C. § 7511(a)(1)(A)(ii)). The National Defense Authorization Act for Fiscal Year 2022, enacted on December 27, 2021, repealed 10 U.S.C. § 1599e and the 2-year probationary period, effective December 31, 2022. Pub. L. No. 117-81, § 1106, 135 Stat. 1541, 1950.2 Bureau of Investigation to the agency security office. W-1 IAF, Tab 1 at 26. As a result of the investigation, on June 24, 2021, the appellant was arrested and criminally charged.3 Id. at 72. In September 2021, the agency proposed the appellant’s termination, referencing the arrest and criminal charges and explaining that, although the charges stemmed from conduct that occurred while the appellant worked for his previous employer, they created questions about his judgment and integrity. Id. at 15-16. The appellant responded to the proposed removal, contending that the action was motivated by partisan politics based on his prior political and civic activities. Id. at 49-59. Thereafter, the agency terminated the appellant effective October 29, 2021. Id. at 19-23. ¶5On appeal to the Board, the appellant again raised his claim that his termination was motivated by partisan politics and also asserted that it was motivated by his disclosures about wrongdoing by various state, county, and municipal officials. Id. at 6-12. He included what appears to be a cover sheet or contact information document referencing a November 26, 2021 filing with the Office of Special Counsel (OSC). Id. at 5. The appellant requested a hearing. Id. at 2. ¶6The regional office docketed the appeal as an IRA appeal and informed the appellant of the jurisdictional elements of an IRA appeal, including the requirement that the appellant establish that he exhausted his remedies with OSC. W-1 IAF, Tab 2. Subsequently, the administrative judge informed the appellant of his burden to establish Board jurisdiction over an appeal of a probationary termination and explained that he would only be afforded a hearing if he made a nonfrivolous allegation of jurisdiction. Schooley v. Department of the Army , MSPB Docket No. PH-1221-22-0045-W-2, Appeal File (W-2 AF), Tab 13 at 2. ¶7After affording the parties an opportunity to develop the record, the administrative judge issued an initial decision finding, among other things, that 3 The appellant avers on review that the prosecutor has dismissed the criminal charges and the matter is in the process of being expunged. Petition for Review File, Tab 1 at 5.3 the appellant filed a complaint with OSC, but that the filing was not in the record. W-2 AF, Tab 22, Initial Decision (ID) at 2. The administrative judge dismissed the appeal for lack of jurisdiction, reasoning that the appellant did not allege sufficient factual matters, accepted as true, to state a claim that was plausible on its face as required by the applicable case law. ID at 4. ¶8The appellant has filed a petition for review arguing that the administrative judge erred in adjudicating the appeal as one involving reprisal for whistleblowing and not partisan political discrimination, as his whistleblowing did not relate to the agency but to state and local Governments. Petition for Review (PFR) File, Tab 1 at 8-10. The appellant also argues that he filed a complaint with OSC raising his claims of partisan political discrimination, that the administrative judge mistakenly stated that “no such filing is on the record,” and that the OSC complaint is now exhausted. Id. at 16-18. The appellant further argues that the deciding official in his termination obtained information about the criminal case from his political rivals outside of the agency or from the base commander, who had close contacts with the appellant’s political rivals. Id. at 12-16. Finally, the appellant asserts that the administrative judge made various procedural errors and was biased in favor of the agency. Id. at 18-25. The agency has responded to the petition for review and the appellant has replied to that response.4 PFR File, Tabs 4-5. 4 The agency’s response to the petition for review was due on May 13, 2023. PFR File, Tab 2. The agency did not file its response until May 15, 2023. Id., Tab 4. Because May 13, 2023, was a Saturday, we find the response was due on Monday, May 15, 2023, and was thus timely filed. 5 C.F.R. § 1201.23. The appellant’s reply to the agency’s response was due within 10 days of the date of service of the agency’s response, which was May 15, 2023, and thus the appellant’s reply was due on May 25, 2023. PFR File, Tabs 2, 4; 5 C.F.R. § 1201.114(e). The appellant did not file his reply to the response until June 2, 2023, and thus it was untimely filed. 5 C.F.R. § 1201.114(e). Accordingly, we have not considered the reply. 5 C.F.R. § 1201.114(g).4 ANALYSIS The appellant has made a nonfrivolous allegation of jurisdiction over his claim that his probationary termination was based on partisan political reasons entitling him to a hearing. ¶9An individual in the competitive service who, like the appellant, has not completed his probationary period has no statutory right of appeal to the Board. Starkey v. Department of Housing and Urban Development , 2024 MSPB 6, ¶ 16; Marynowski v. Department of the Navy , 118 M.S.P.R. 321, ¶ 4 (2012); W-1 IAF, Tab 1 at 1, 76, Tab 3 at 14; see 5 U.S.C. § 7511(a)(1)(A). However, under certain limited circumstances, there may be a regulatory right of appeal. As relevant here, an individual serving in his probationary period “may appeal . . . a termination not required by statute which he or she alleges was based on partisan political reasons or marital status.”5 5 C.F.R. § 315.806. To be entitled to a hearing in such an appeal, an appellant must make a nonfrivolous allegation of jurisdiction, that is, an allegation of fact that, if proven, would establish that his termination was based on partisan political reasons. Starkey, 2024 MSPB 6, ¶ 16 n.4; Green-Brown v. Department of Defense , 118 M.S.P.R. 327, ¶ 5 (2012). The appellant’s allegations must be more than mere conjecture and the appellant must provide supporting facts to show that the allegation is not merely a pro forma pleading. Smirne v. Department of the Army , 115 M.S.P.R. 51, ¶ 8 (2010). In determining whether the appellant has made a nonfrivolous allegation of jurisdiction the Board may consider the agency’s documentary submissions; however, to the extent that the agency’s evidence constitutes mere factual contradiction of the appellant’s otherwise adequate prima facie showing of 5 The administrative judge provided the appellant with notice regarding the elements and burdens of proof associated with appealing a probationary termination, including those related to a claim that the agency took the action, in whole or in part, based on preappointment reasons and did not follow the procedures set forth in 5 C.F.R. § 315.805. W-2 AF, Tab 13 at 2. Although the appellant has alleged that the termination was based on preappointment reasons, namely his political and civic activities, he has not alleged that the agency failed to follow the procedures set forth in 5 C.F.R. § 315.805(a)-(c). 5 jurisdiction, the administrative judge may not weigh the evidence and resolve conflicting assertions of the parties, and the agency’s evidence may not be dispositive. Smirne, 115 M.S.P.R. 51, ¶ 8; Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). ¶10Discrimination based on “partisan political reasons” under 5 C.F.R. § 315.806(b) means discrimination based on affiliation with any political party or candidate. Mastriano v. Federal Aviation Administration , 714 F.2d 1152, 1155- 56 (Fed. Cir. 1983); Marynowski, 118 M.S.P.R. 321, ¶ 7. Here, the appellant detailed his past affiliation with a political party, political activity in support of various candidates, and his own candidacy for political office and alleges that he was terminated because of those activities. The question presented at this stage of the proceeding is whether the appellant made a nonfrivolous allegation regarding that claim. ¶11In his initial appeal, the appellant noted that the deciding official wrote in the termination decision that the criminal investigation of the appellant started before he was hired at LEAD. W-1 IAF, Tab 1 at 7, 20, 22. The appellant argued that neither he nor his attorney were aware that the investigation of the appellant began before he commenced work at LEAD and that only the investigators and some witnesses would have known such details about the investigation. Id. at 7; W-1 IAF, Tab 7 at 10. He further argued that specific political rivals provided information about the investigation to the agency, that the agency terminated him “at the request, behest, suggestion, advisement, or the encouragement” of those rivals, and that the collusion of agency officials in that outside request constituted partisan political discrimination.6 W-1 IAF, Tab 7 at 10-12. The appellant 6 The appellant argued below and on review that these communications constituted improper ex parte communications violative of his constitutional rights. W-1 IAF, Tab 1 at 7, Tab 7 at 10-13; PFR File, Tab 1 at 12-16; see Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1376 (Fed. Cir. 1999) (finding that a deciding official violates an employee’s due process rights when he relies upon new and material ex parte information as a basis for his decisions on the merits of an adverse action); Ward v. U.S. Postal Service , 634 F.3d 1274, 1279-80 (Fed. Cir. 2011) (finding that a deciding official violates an employee’s due process rights when he relies upon new and6 supported his claim that the aforementioned political rivals were in contact with senior agency officials by providing photographs and social media posts about meetings and events involving political rivals and agency officials. W-2 AF, Tab 15 at 4-8, Tab 16 at 4-9. Regarding the appellant’s allegations, which were also raised in his response to the proposed termination, the deciding official specifically stated that he “ had no contact with any person from Franklin County regarding [the appellant’s] employment at LEAD.” W-1 IAF, Tab 1 at 19 (emphasis in original). As discussed above, however, in determining whether the appellant has made a nonfrivolous allegation of jurisdiction, the Board may not weigh evidence.7 Smirne, 115 M.S.P.R. 51, ¶ 8; Ferdon, 60 M.S.P.R. at 320. ¶12In sum, the appellant has made allegations that partisan political discrimination played a role in his termination and those allegations, if proven, would establish Board jurisdiction. Accordingly, we remand this matter to the administrative judge. The administrative judge shall develop the record, conduct a hearing, and issue a new initial decision that identifies all material issues of fact and law, summarizes the evidence, resolves issues of credibility, and includes the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests.8 See Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980). material ex parte information as a basis for his decisions on the penalty to be imposed for misconduct). The Board may only address affirmative defenses, such as those raised by the appellant, if it has jurisdiction over the underlying action. White v. Department of the Army, 2023 MSPB 17, ¶ 13. Accordingly, we need not address the appellant’s claim. 7 We are aware that it is not unusual for local political leaders to meet with senior leaders from military bases located in the community, but, as stated, at this stage of the proceeding the Board cannot weigh the probative value of the evidence. 8 The administrative judge shall afford the parties the opportunity to engage in discovery regarding the issues relevant to this appeal. 5 C.F.R. §§ 1201.71-1201.85. 7 Because the appellant has provided evidence of OSC exhaustion, we remand the appeal for further adjudication, including specific notice of the jurisdictional elements when a disclosure involves purported wrongdoing by a non-Federal entity. ¶13As mentioned above, the administrative judge adjudicated the appellant’s appeal as an IRA appeal and dismissed it for lack of jurisdiction. On review, the appellant argues that he did not intend his appeal to be considered as an IRA appeal because his whistleblowing did not relate to the agency, but instead related to state and local Governments. PFR File, Tab 1 at 8-10. Although we acknowledge the appellant’s statement, we are concerned about the adequacy of the administrative judge’s notice to the appellant. ¶14With his petition for review, the appellant provides a November 14, 2022 letter from OSC setting forth its initial findings regarding his allegations of prohibited personnel practices, including under 5 U.S.C. § 2302(b)(8), which prohibits reprisal for whistleblowing.9 PFR File, Tab 1 at 51-53. In that letter, OSC described the appellant’s complaint as including allegations that someone revealed the investigation of the appellant in reprisal for his 2019 disclosure about water quality issues to the Pennsylvania Department of Environmental protection. Id. at 52-53. ¶15The 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 According to OSC’s letter, the appellant also raised alleged violations of 5 U.S.C. § 2302(b)(4), regarding willfully obstructing an individual’s right to compete for a Federal position. PFR File, Tab 1 at 52. Such a claim is not a basis for Board jurisdiction. Stroud v. Department of Veterans Affairs , 2022 MSPB 43, ¶ 24 (stating that prohibited personnel practices are not an independent source of Board jurisdiction); Gaugh v. Social Security Administration , 87 M.S.P.R. 245, ¶ 7 (2000) (stating that allegations of prohibited personnel practices, including 5 U.S.C. § 2302(b)(4), are not within the Board’s jurisdiction in an IRA appeal). After considering the appellant’s response, OSC closed its investigation in a December 1, 2022 letter. PFR File, Tab 3 at 9-10.8 (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). Williams v. Department of Defense , 2023 MSPB 23, ¶ 8; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). Although the appellant failed to provide evidence of OSC exhaustion below,10 the issue of jurisdiction is always before the Board and evidence of exhaustion may be considered for the first time on review. See, e.g., Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013); Atkinson v. Department of State, 107 M.S.P.R. 136, ¶ 12 (2007). Thus, we will consider the evidence of OSC exhaustion submitted for the first time on review. ¶16The Board’s IRA jurisdiction is limited to those issues that have been previously raised with OSC . Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 7. However, an appellant may give a more detailed account of his whistleblowing activities before the Board than he did to OSC. Id. Here, the appellant raised essentially the same allegations that he was terminated from his position with LEAD because of his disclosures about water quality to OSC and the Board. Thus, we find that he exhausted that matter with OSC. ¶17As mentioned previously, the administrative judge provided the appellant with general notice regarding the burdens of proof in his IRA appeal, but that notice was inadequate under the facts of this case. W-2 AF, Tab 13. Specifically, as discussed above, the appellant’s claims of whistleblowing involved disclosures of purported wrongdoing by a non-Federal Government entity. The Board has held that a disclosure of wrongdoing committed by a non-Federal Government entity may be protected when the Government’s interests and good name are 10 In his petition for review, the appellant asserts that the administrative judge erred by stating that a copy of the appellant’s OSC complaint was not in the record. PFR File, Tab 1 at 17; ID at 2. To the extent that the appellant filed a copy of his OSC complaint with the administrative judge, he did not clearly identify it as such and we discern no error in the administrative judge’s statement. 9 implicated in the alleged wrongdoing, and the employee shows that he reasonably believed that the information he disclosed evidenced that wrongdoing. Covington v. Department of the Interior , 2023 MSPB 5, ¶ 16; Miller v. Department of Homeland Security , 99 M.S.P.R. 175, ¶ 12 (2005). Because it was never explained to him, the appellant may not have understood the possible validity of a claim of whistleblower reprisal involving non-Federal Government wrongdoing. Accordingly, on remand, the administrative judge shall provide the appellant with specific notice regarding Board jurisdiction over a claim of reprisal for whistleblowing when the disclosure involved alleged wrongdoing by a non- Federal Government entity. If, after receiving such notice, the appellant does not wish to pursue a whistleblower reprisal claim, he should inform the administrative judge of his decision. The appellant’s claim that the administrative judge was biased does not establish a basis to disturb the initial decision. ¶18In his petition for review, the appellant asserts, among other things, that the administrative judge was biased against him as evidenced by the administrative judge’s rulings and conduct during the proceedings below, his not treating the appellant and his union representative with special consideration because they are not attorneys, and his failure to sanction the agency for missing a status conference. PFR File, Tab 1 at 18-22. A party claiming that an administrative judge was biased must overcome the presumption of honesty and integrity that accompanies administrative adjudicators. Maloney v. Executive Office of the President, 2022 MSPB 26, ¶ 38; Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if his comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362- 63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). The Board will not infer bias based on an administrative judge’s case-related10 rulings. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013); see Maloney, 2022 MSPB 26, ¶ 38. While the Board, in some circumstances, may be more lenient toward pro se appellants, here, the appellant was represented throughout the proceedings by a union representative and thus, contrary to the appellant’s arguments, the administrative judge was not required to show leniency in applying the Board’s procedures.11 Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 24. Finally, an administrative judge has broad discretion to control the proceedings before him, including ruling on sanctions, and the Board will not disturb an administrative judge’s determinations absent an abuse of discretion. Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 9; El v. Department of Commerce, 123 M.S.P.R. 76, ¶ 16 (2015) (finding no abuse of discretion when an administrative judge denied an appellant’s motion of sanctions). We discern no abuse of discretion here.12 Thus, we are not persuaded by the appellant’s claims that the administrative judge acted improperly. 11To the extent the appellant asserts that he experienced difficulty in submitting large attachments electronically during the proceedings below, PFR File, Tab 1 at 22-24, he may submit the relevant evidence on remand consistent with the administrative judge’s instructions and the Board’s regulations. 12 Regarding the appellant’s contentions that the administrative judge failed to address certain motions, PFR File, Tab 1 at 21-22, the appellant has not shown how he was harmed by any procedural error by the administrative judge, particularly because the appeal is being remanded. Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (stating 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). 11 ORDER ¶19For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.12	Schooley_Travis_G_PH-1221-22-0045-W-2_Remand_Order.pdf	2024-08-27	TRAVIS GARY SCHOOLEY v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-1221-22-0045-W-2, August 27, 2024	PH-1221-22-0045-W-2	NP
621	https://www.mspb.gov/decisions/nonprecedential/Bradberry_Camerron_L_DE-1221-23-0108-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CAMERRON L. BRADBERRY, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DE-1221-23-0108-W-1 DATE: August 27, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Camerron L. Bradberry , Lakewood, Colorado, pro se. Larry Pruitt , Esquire, Joint Base Andrews, 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. FINAL ORDER The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in his individual right of action appeal. On petition for review, the appellant argues, among other things, that there was a plot to retaliate against him, and that the findings related to his conduct 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). performance were based on hearsay and personal opinions.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 2 The appellant also claimed that he proved his claim of whistleblower reprisal, and that the administrative judge illegally denied him corrective action in order to protect his reputation and career. Petition for Review File, Tab 1 at 5-6. The appellant’s contention is not based on any evidence of the record. If an appellant proves that his protected disclosure was a contributing factor in a personnel action taken against him, corrective action must be granted unless the agency can prove by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure. Smith v. Department of the Army , 2022 MSPB 4, ¶ 13; see 5 U.S.C. § 1221(e). The administrative judge properly applied the whistleblower protection analytical framework, and found that, although the appellant proved that he made a protected disclosure that was a contributing factor in his termination, the agency proved by clear and convincing evidence that it would have terminated the appellant in the absence of his whistleblowing. Initial Appeal File, Tab 42, Initial Decision at 27. Accordingly, the appellant is not entitled to corrective action, and the appellant’s accusations are without merit. Furthermore, to the extent that the appellant asserts that the administrative judge acted with prejudice or bias, he has produced no evidence that would overcome the presumption of honesty and integrity that accompanies administrative adjudicators . Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980); see Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (explaining that 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). 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	Bradberry_Camerron_L_DE-1221-23-0108-W-1_Final_Order.pdf	2024-08-27	CAMERRON L. BRADBERRY v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DE-1221-23-0108-W-1, August 27, 2024	DE-1221-23-0108-W-1	NP
622	https://www.mspb.gov/decisions/nonprecedential/Stewart_Andrew_J_DA-3330-21-0059-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ANDREW J. STEWART, Appellant, v. DEPARTMENT OF JUSTICE, Agency.DOCKET NUMBER DA-3330-21-0059-I-1 DATE: August 27, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jack Whitehead, Jr. , Esquire, John-Ed L. Bishop , Esquire, and Joshua L. Davis , Esquire, Baton Rouge, Louisiana, for the appellant. Kenneth Bork , 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 denied his request for corrective action under the Veterans Employment Opportunities Act of 1998 (VEOA). Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED as to the reason why the appellant is not entitled to corrective action on his claim of denial of a right to compete under 5 U.S.C. § 3304(f)(1), we AFFIRM the initial decision. BACKGROUND The appellant, a preference-eligible veteran, is a GS-11 Engineering Technician at the agency’s Federal Bureau of Prisons (BOP). Initial Appeal File (IAF), Tab 1 at 1, 9, Tab 5 at 14-15, Tab 6 at 4, Tab 9 at 49. In July 2020, the agency posted a vacancy announcement for a GS-12 Correctional Program Specialist (Emergency Preparedness Officer) position. IAF, Tab 9 at 9. It is undisputed that the vacancy announcement was open to current BOP employees and certain applicants outside of its own workforce, i.e., military spouses, and that the agency filled it using merit promotion procedures. IAF, Tab 5 at 4-5, 16, Tab 9 at 4-5 & n.6, Tab 13 at 6. The appellant applied for the position, but he received a notification stating that the agency determined he did not meet the qualifications for the position. IAF, Tab 1 at 9, 13, Tab 5 at 18-19. On October 1, 2020, he timely filed a VEOA complaint with the Department of Labor (DOL) regarding his nonselection. IAF, Tab 5 at 7-10.2 After receiving a close-out letter from DOL dated October 28, 2020, the appellant filed the instant appeal arguing that the agency’s failure to forward his application to the selecting official violated his right to compete as a preference-eligible applicant under 5 U.S.C. § 3304(f)(1).2 IAF, Tab 1 at 1-2, 9, 13-14. The administrative judge issued an initial decision denying the appellant’s request for corrective action under VEOA, finding that he failed to establish by preponderant evidence that the agency denied him the opportunity to compete. IAF, Tab 17, Initial Decision (ID) at 1, 7-8. Specifically, the administrative judge found that the appeal was within the Board’s jurisdiction, the appellant was a preference-eligible veteran, and the agency’s action occurred after December 10, 2004. ID at 3. She further found that the agency provided the appellant the right to compete because it evaluated his application on the same basis as those of the other applicants. ID at 7. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response, and the appellant has replied. PFR File, Tabs 3-4. DISCUSSION OF ARGUMENTS ON REVIEW To prevail on the merits of a VEOA appeal involving a veterans’ preference claim,3 an appellant must prove by preponderant evidence that he is a preference eligible or veteran who was separated from the armed forces under honorable conditions after 3 years or more of active service; that the actions at issue took place on or after the October 31, 1998 enactment date of VEOA for preference eligibles or the December 10, 2004 enactment date of the Veterans’ Benefits Improvement Act of 2004 for veterans covered by section 3304(f)(1); and that the 2 The appellant expressly elected not to pursue a claim under 5 U.S.C. § 3330a(a)(1)(A) that the agency violated other statutory or regulatory rights he might have as a preference eligible. IAF, Tab 3 at 2-4, Tab 5, Tab 10 at 2 n.3. 3 The parties do not dispute, and we find no reason to disturb, the administrative judge’s finding that the Board has jurisdiction over this appeal. ID at 2-4. 3 agency denied him the opportunity to compete under merit promotion procedures for a vacant position for which the agency accepted applications from individuals outside its own workforce. See Oram v. Department of the Navy , 2022 MSPB 30, ¶ 6 (setting forth an appellant’s jurisdictional burden); see also Graves v. Department of Veterans Affairs , 114 M.S.P.R. 209, ¶¶ 10, 19 (2010) (reflecting that an appellant’s burden to prove the merits of his VEOA claim is preponderant evidence). Here, the parties do not dispute, and we find no reason to disturb, the administrative judge’s findings that the appellant is preference eligible and the nonselection took place after VEOA’s enactment. ID at 3-4; IAF, Tab 1 at 9, Tab 5 at 8-9, Tab 6 at 4-5, Tab 9 at 9-13; see 5 U.S.C. § 2108(3) (defining “preference eligible” for purposes of Title 5). Therefore, the remaining issue is whether the agency’s action violated his right to compete. See Oram, 2022 MSPB 30, ¶ 6. We agree with the administrative judge’s conclusion that the appellant was not entitled to any corrective action under VEOA, however, we modify the initial decision as to the legal basis for this determination. Under 5 U.S.C. § 3304(f)(1), preference eligibles and certain veterans “may not be denied the opportunity to compete for vacant positions for which the agency making the announcement will accept applications from individuals outside its own workforce under merit promotion procedures.” The administrative judge concluded that the agency did not violate the appellant’s right to compete under 5 U.S.C. § 3304(f)(1) because “[t]he undisputed record shows the agency evaluated the appellant’s application on the same basis as the other applicants’ and, based on his score, did not refer the appellant for further consideration.” ID at 7. On review, the appellant reiterates his argument that the right to compete affords preference eligibles “the [r]ight to be [c]onsidered [and] requires [p]reference-[e]ligibles to be submitted to the selecting official(s).” PFR File, Tab 1 at 5. We find this argument unavailing because, as explained below,4 the right to compete does not extend to the appellant because he was already a Federal employee. We modify the initial decision accordingly. In Oram, 2022 MSPB 30, ¶ 17, the Board found that, as a matter of law, current Federal employees are not entitled to corrective action based on a claim of denial of an opportunity to compete under 5 U.S.C. § 3304(f)(1). In reaching this decision, the Board relied on the U.S. Court of Appeals for the Federal Circuit’s decision in Kerner v. Department of the Interior , 778 F.3d 1336 (Fed. Cir. 2015). In Kerner, after reviewing the text and legislative history of the VEOA and its precursor, the Veterans’ Preference Act, the Federal Circuit reasoned that nothing in the statutory language, the legislative history, or case law supported a presumption that the “opportunity to compete” provision in 5 U.S.C. § 3304(f) applies in instances in which an applicant is already employed in the Federal civil service. Kerner, 778 F.3d at 1338. The Federal Circuit reasoned that the intent of the subject provision was to assist veterans in obtaining an initial appointment to the Federal service, not subsequent promotions or other intra-agency movement. Id. The court concluded that, because veterans currently employed in a competitive service position are already “eligible to apply” to merit promotion vacancies, such applicants could not have been the intended beneficiaries of section 3304(f). Id. at 1338-39. Here, because it is undisputed that the appellant was already a Federal employee, 5 U.S.C. § 3304(f) was inapplicable to him as a matter of law. See Oram, 2022 MSPB 30, ¶¶ 13, 17 (citing Kerner, 778 F.3d at 1338-39). Because the right to compete does not extend to the appellant’s application for the Correctional Program Specialist position, it is unnecessary to address the parties’ argument regarding what such a right entails. PFR File, Tab 1 at 5-10, Tab 3 at 7-11, Tab 4. Accordingly, we affirm as modified the initial decision, still denying the appellant’s request for corrective action under VEOA.5 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.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.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. 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	Stewart_Andrew_J_DA-3330-21-0059-I-1_Final_Order.pdf	2024-08-27	ANDREW J. STEWART v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-3330-21-0059-I-1, August 27, 2024	DA-3330-21-0059-I-1	NP
623	https://www.mspb.gov/decisions/nonprecedential/Roy_DianeDA-0432-20-0133-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DIANE ROY, Appellant, v. DEPARTMENT OF AGRICULTURE, Agency.DOCKET NUMBER DA-0432-20-0133-I-1 DATE: August 26, 2024 THIS ORDER IS NONPRECEDENTIAL1 Jesse L. Kelly II , Esquire, and Shaun Southworth , Esquire, Atlanta, Georgia, for the appellant. Patrick D. Gregory, Sr. , Esquire, and Martin A. Gold , Esquire, Washington, D.C., for the agency. Julieanna Walker , New Orleans, Louisiana, 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 removing her for unacceptable performance pursuant 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). to 5 U.S.C. chapter 43. For the reasons set forth below, we GRANT the petition for review. We MODIFY the initial decision to clarify the legal standard applicable to the appellant’s claims of age and race discrimination and retaliation for prior protected equal employment opportunity (EEO) activity, VACATE an alternative finding made by the administrative judge regarding the appellant’s claim of whistleblower reprisal, and REMAND the appeal to the regional office for further adjudication consistent with the U.S. Court of Appeals for the Federal Circuit’s decision in Santos v. National Aeronautics & Space Administration , 990 F.3d 1355 (Fed. Cir. 2021). BACKGROUND Effective November 19, 2018, the agency placed the appellant, a GS -7 Financial Assistant, on a 40-day performance improvement plan (PIP),2 explaining that her performance was unacceptable in three critical elements of her position: (1) Mission Results; (2) Customer Service, Communication, EEO, Civil Rights, Diversity and Inclusion; and (3) Teamwork and Partnerships. Initial Appeal File (IAF), Tab 6 at 12, Tab 8 at 18-23.3 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 maintain an acceptable level of performance for 1 year following the commencement of the PIP, she could still be subject to either a reduction in grade or removal. IAF, Tab 8 at 24-25. On November 7, 2019, the agency proposed to remove the appellant for failure to perform acceptably in two critical elements: (1) Mission Results and (2) Customer Service, Communication, EEO, Civil Rights, Diversity and 2 As a result of a Federal Government shutdown, the appellant’s PIP, which was initially scheduled from November 19, 2018, through December 28, 2018, was extended for an additional 7 days, from February 6, 2019, through February 13, 2019. Initial Appeal File, Tab 8 at 18, 26-27. 3 Documentation in the record indicated that Teamwork and Partnerships was a noncritical element, IAF, Tab 8 at 7, 17; however, insofar as the appellant’s removal was not predicated on this element, this discrepancy is not material to the outcome of this appeal. 2 Inclusion. IAF, Tab 9 at 177-81. After she responded to the proposed removal both orally and in writing, IAF, Tab 6 at 57-67, Tab 7 at 4 -12, the agency removed the appellant, effective December 30, 2019, for failing to meet performance standards for the critical element of Mission Results, IAF, Tab 6 at 12-18. The appellant appealed the agency’s removal action to the Board, and following a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 39, Initial Decision (ID) at 1, 31. In so doing, the administrative judge found that the agency had shown, by substantial evidence, the following: (1) the Office of Personnel Management 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; (3) the performance standards were valid under 5 U.S.C. § 4302(c)(1); (4) the agency had warned the appellant of the inadequacies in her performance and had given her a reasonable opportunity to demonstrate acceptable performance; and (5) the appellant failed to maintain an acceptable level of performance in one of the critical elements for which she was provided an opportunity to demonstrate acceptable performance throughout the year following the commencement of the PIP. ID at 5-21. The administrative judge also concluded that the appellant did not prove any of her proffered affirmative defenses by preponderant evidence. ID at 21-30. The appellant has filed petition for review, arguing, among other things, that the agency did not meet the elements necessary to establish a chapter 43 action, and that the administrative judge erred in finding that she did not prove her claims of discrimination or retaliation, or whistleblower reprisal.4 Petition for 4 The appellant has also challenged the administrative judge’s findings that the agency did not violate her due process rights. PFR File, Tab 1 at 6, 9. Upon review of the record and consideration of the appellant’s arguments, we discern no basis to disturb these findings. ID at 21-24.3 Review (PFR) File, Tabs 1, 3. The agency responded in opposition to the appellant’s petition for review. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The agency established the elements of its chapter 43 action under the law when the initial decision was issued. In her petition for review, the appellant argues, among other things, that the administrative judge erred in finding that the agency communicated the performance standards of her position, proved that its performance standards were valid under 5 U.S.C. § 4302(c)(1), and established that it provided her with a reasonable opportunity to demonstrate acceptable performance. PFR File, Tab 1 at 5-8. After review of the record, and consideration of the appellant’s arguments, we discern no basis to disturb the administrative judge’s finding that the agency proved the elements required to establish a chapter 43 action under the law when the initial decision was issued.5 Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997) (stating that the Board will not disturb an administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same). Nevertheless, as discussed below, we must remand the appeal to account for Santos. We modify the initial decision to supplement the administrative judge’s analysis of the appellant’s discrimination and retaliation claims, but still find that the appellant did not prove these claims. On review, the appellant challenges the administrative judge’s conclusion that she did not prove her claims of age and race discrimination, and argues that 5 The appellant also contends on review that the administrative judge improperly relied on hearsay evidence. PFR File, Tab 1 at 5-8. Even assuming the appellant’s characterization of the evidence as hearsay is correct, a different outcome would not be warranted because it is well settled that hearsay evidence is admissible in Board proceedings. See Crawford-Graham v. Department of Veterans Affairs , 99 M.S.P.R. 389, ¶ 20 (2005) (stating that relevant hearsay evidence is admissible in administrative proceedings). 4 the administrative judge “err[ed] in her analysis about retaliation.” PFR File, Tab 1 at 9. She asserts that, in light of the U.S. Supreme Court’s decision in Babb v. Wilkie, 589 U.S. 399 (2020), the administrative judge applied the incorrect legal standard and, therefore, the initial decision should be reversed. Id. Although we agree with the administrative judge that the appellant did not prove her claims of race discrimination, age discrimination, or EEO retaliation, we supplement the administrative judge’s findings to clarify the proper analytic framework under Pridgen v. Office of Management and Budget , 2022 MSPB 31. ID at 25-30. In the initial decision, the administrative judge relied on the framework set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), to analyze the appellant’s claims of discrimination and retaliation and conclude that the appellant did not show that her race, age, or prior EEO activity was a motivating factor in her removal.6 ID at 25, 28-30. After the administrative judge issued the initial decision, the Board issued Pridgen, 2022 MSPB 31, ¶¶ 20-22, 30, which clarified that, in order to obtain the full measure of relief, including status quo ante relief, compensatory damages, or other forms of relief related to the employment action, the appellant must show that discrimination or retaliation was a “but for” cause of the action. Id. Nevertheless, under both Savage and Pridgen, the appellant bears the initial burden of proving by preponderant evidence that her age, race, or EEO activity is a motivating factor in the agency’s removal action. Pridgen, 2022 MSPB 31, ¶ 20-22, 30; Savage, 121 M.S.P.R. 612, ¶ 51. Because we agree with the 6 The appellant alleged before the administrative judge that the agency retaliated against her due to numerous instances of prior EEO activity, including a December 10, 2019 initiation of informal EEO counseling based on allegations of sex, race, age, and disability discrimination. IAF, Tab 28 at 8, Tab 29 at 26-27. EEO activity alleging disability discrimination is protected by the Rehabilitation Act , and requires the appellant to prove “but for” causation in the first instance. Pridgen, 2022 MSPB 31, ¶ 40. Although the administrative judge here did not consider or apply the more stringent “but for” standard, b ecause we agree with her conclusion the appellant failed to meet the lesser burden of proving that any of her protected activity was a motivating factor in her removal, she necessarily failed to meet the more stringent “but for” standard that applies to her Rehabilitation Act retaliation claim . ID at 27.5 administrative judge that the appellant did not meet her initial burden, there is no material error in the administrative judge’s reliance on Savage rather than Pridgen. Accordingly, we discern no basis to disturb these findings. 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). We agree that the appellant failed to prove her affirmative defense of whistleblower reprisal; however, we vacate an alternative finding made by the administrative judge. The appellant asserts that the agency engaged in whistleblower reprisal. PFR File, Tab 1 at 9-10. In particular, she avers that she made a protected disclosure when she disclosed to agency personnel “gross mismanagement” regarding a computer glitch that she allegedly encountered. Id. at 9. She also avers that the agency presented “weak” evidence in support of her removal. Id. To prove an affirmative defense of whistleblower reprisal, the appellant must first demonstrate by preponderant evidence that 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 that the disclosure or activity was a contributing factor in the adverse action. See Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015) (recognizing that, under the Whistleblower Protection Enforcement Act of 2012 (WPEA), an appellant may raise an affirmative defense of whistleblower retaliation based on protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D)); Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 19 (2013) (stating the foregoing proposition concerning disclosures protected by 5 U.S.C. § 2302(b)(8)). If the appellant meets this burden, then the burden of persuasion shifts to the agency to prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosure or activity. Alarid, 122 M.S.P.R. 600, ¶ 14. 6 Despite the appellant’s characterization of this purported disclosure, PFR File, Tab 1 at 9, we find that it did not implicate either gross mismanagement or any of the other categories of wrongdoing enumerated under section 2302(b)(8), see Cassidy v. Department of Justice , 118 M.S.P.R. 74, ¶ 8 (2012) (explaining that de minimis wrongdoing or negligence does not constitute gross mismanagement). Thus, we agree with the administrative judge’s conclusion that the appellant failed to prove that the agency engaged in whistleblower reprisal. ID at 28. Although the issue was not raised on review, under the WPEA, the Board may not proceed to the clear and convincing test unless it has first made a finding that the appellant established her prima facie case. 5 U.S.C. § 1221(e)(2); Clarke v. Department of Veterans Affairs , 121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Here, the administrative judge found in the alternative that even if the appellant had made a protected disclosure that had contributed to her removal, the agency showed by clear and convincing evidence that it would have removed her. ID at 28. Accordingly, w e vacate this alternative finding. See Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 28 (2016). Remand is required in light of Santos . In affirming the appellant’s performance-based removal, the administrative judge correctly cited and applied the Board’s precedent setting forth the relevant legal standard for such actions under chapter 43. ID at 4-21. Subsequent to the initial decision, however, the Federal Circuit held for the first time that to support an adverse action under chapter 43, an agency “must justify institution of a PIP” by showing that the employee’s performance was unacceptable before the PIP. Santos, 990 F.3d at 1360-61. Therefore, to defend an action under chapter 43, an agency must now also prove by substantial evidence that the appellant’s performance during the appraisal period prior to the PIP was unacceptable in one or more critical elements. See Lee v. Department of Veterans Affairs , 20227 MSPB 11, ¶ 15. The Federal Circuit’s decision in Santos applies to all pending cases, including this one, regardless of when the events took place. Id., ¶ 16. The parties here did not have an opportunity before the administrative judge to address the modified legal standard in light of Santos. We therefore remand this case for further adjudication of the appellant’s removal under the standard set forth in Santos. See Santos, 990 F.3d at 1363-64 (remanding the appeal for further proceedings under the modified legal standard); see also Lee, 2022 MSPB 11, ¶ 16 (remanding the appellant’s chapter 43 appeal because the parties were not informed of the modified standard set forth in Santos). On remand, the administrative judge shall accept evidence and argument on whether the agency proved by substantial evidence that the appellant’s pre-PIP performance was unacceptable. The administrative judge shall 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 her prior findings on other elements of the agency’s case in the remand initial decision, as modified here. However, regardless of whether the agency meets its burden, if the argument or evidence on remand regarding the appellant’s pre-PIP performance affects the administrative judge’s analysis of the appellant’s affirmative defenses, she should address such argument or evidence in the remand initial decision. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (explaining that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). ORDER For the reasons discussed above, we grant the appellant’s petition for review, modify the initial decision to clarify the legal standard applicable to the8 appellant’s discrimination and EEO retaliation claims, vacate the administrative judge’s alternative finding regarding whistleblower reprisal, 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.9	Roy_DianeDA-0432-20-0133-I-1_Remand_Order.pdf	2024-08-26	DIANE ROY v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DA-0432-20-0133-I-1, August 26, 2024	DA-0432-20-0133-I-1	NP
624	https://www.mspb.gov/decisions/nonprecedential/Thomas_Wayne_A_DC-3443-21-0015-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WAYNE ALLEN THOMAS, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-3443-21-0015-I-1 DATE: August 26, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wayne Allen Thomas , Chester, Virginia, pro se. C. Michael Meehan and Jeffrey Csokmay , Esquire, Columbus, Ohio, 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). BACKGROUND The appellant filed an appeal against the Defense Logistics Agency, which appears to concern his security clearance level. Initial Appeal File (IAF), Tab 1 at 4-5. Unsure of the precise nature of the appeal, the administrative judge issued a jurisdictional order, which instructed the appellant to clarify the nature of his appeal and to meet his burden to establish Board jurisdiction. IAF, Tab 3. The appellant did not submit a response, and the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, finding no basis to invoke Board jurisdiction from the face of the appeal. IAF, Tab 7, Initial Decision. The appellant then filed the instant petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response, and the appellant has filed a reply. PFR File, Tabs 3-5. DISCUSSION OF ARGUMENTS ON REVIEW The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). The Board does not have jurisdiction over an agency’s security clearance process or its determinations.2 Skees v. Department of the Navy , 864 F.2d 1576, 1578 (Fed. Cir. 1989). We agree, for the reasons set forth in the initial decision, that the appellant failed to make a nonfrivolous allegation of Board jurisdiction over his claim about his security clearance level. The appellant files several documents for the first time on review. PFR File, Tab 4 at 15-27. The Board generally will not consider evidence submitted for the first time in a petition for review absent a showing that it is based on new and material evidence that was not previously available despite a party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The first document the appellant submits relates to his security clearance level and appears to have been produced to the appellant by the Defense Counterintelligence and Security Agency on December 4, 2020, pursuant to the appellant’s November 27, 2020 Freedom of Information Act (FOIA) request. PFR File, Tab 4 at 15-17. Because the appellant requested the records through FOIA after the record closed before the administrative judge, we find that he did not act diligently in procuring the records, and therefore we do not consider them. See Avansino, 3 M.S.P.R. at 213-14. The appellant does not explain why he delayed requesting the records through FOIA, but he states in his petition for review that his “household was stricken by COVID-19.” PFR File, Tab 4 at 7, 25. To the extent the appellant argues that COVID-19 prevented him from making a timely FOIA request, he does not explain how it impaired his ability to request the records, and this argument is undermined by the fact that the appellant submitted other filings after his COVID-19 diagnosis. E.g., IAF, Tab 1. Even if we were to consider the document, it has no bearing on the question of whether the Board has jurisdiction over this appeal. See Schoenig v. Department of Justice, 120 M.S.P.R. 318, ¶ 7 (2013) (stating the Board may consider evidence for the first time on a petition for review if it implicates the Board’s jurisdiction and warrants an outcome different from that of the initial decision). 3 The appellant files two other documents for the first time on review, including a 2019 email chain relating to a job application and a 2018 job announcement. PFR File, Tab 4 at 18-24. Both documents predate the filing of the initial appeal. Compare IAF, Tab 1, with PFR File, Tab 4 at 18-24. The Board will not consider evidence submitted for the first time on review when it was previously available but a party elected not to submit it to the administrative judge. Fox v. U.S. Postal Service , 81 M.S.P.R. 522, ¶¶ 4-5 (1999). The appellant has not argued that he did not possess the documents prior to the close of the record, and we do not find any evidence in the record to support this. Accordingly, we do not consider these documents. Even if the Board were to consider the documents, they are irrelevant to the question of jurisdiction over the appellant’s appeal concerning his security clearance. The appellant also raises new arguments for the first time on review, including discussion of a pending equal employment opportunity (EEO) complaint, his disabled veteran status, and the rescission of a job offer. PFR File, Tab 1 at 3-5, Tabs 4-5. 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. Hodges v. Office of Personnel Management , 101 M.S.P.R. 212, ¶ 7 (2006). To the extent the appellant seeks to challenge the rescission of a job offer by the Defense Contract Management Agency, the appellant raised that claim in an earlier appeal, and the Board dismissed it for lack of jurisdiction. Thomas v. Department of Defense , MSPB Docket No. DC -3443-19-0797-I-1, Final Order (Aug. 23, 2024). The appellant is precluded from relitigating the issue of jurisdiction over the rescission of a job offer in this appeal based on collateral estoppel. See Noble v. U.S. Postal Service , 93 M.S.P.R. 693, ¶¶ 8-11 (2003) (finding an appellant was barred from relitigating the issue of jurisdiction based on collateral estoppel when (1) the issue in a second appeal was identical to that involved in a prior action, (2) the issue was actually litigated in the prior action,4 (3) the determination on the issue in the prior action was necessary to the resulting judgment, and (4) the party precluded was fully represented in the prior action). The appellant has not explained how his pending EEO complaint or disabled veteran status relate to the instant appeal about his security clearance, and he has not established that these new arguments are based on evidence that was unavailable prior to the close of the record despite his due diligence. Therefore, we do not consider these new arguments. See Hodges, 101 M.S.P.R. 212, ¶ 7; 5 C.F.R. § 1201.115(d). For the foregoing reasons, we affirm the initial decision and deny the petition for review. 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.5 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you6 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 7 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Thomas_Wayne_A_DC-3443-21-0015-I-1_Final_Order.pdf	2024-08-26	WAYNE ALLEN THOMAS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3443-21-0015-I-1, August 26, 2024	DC-3443-21-0015-I-1	NP
625	https://www.mspb.gov/decisions/nonprecedential/Williams_JoanDC-1221-23-0592-W-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOAN WILLIAMS, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-1221-23-0592-W-1 DATE: August 26, 2024 THIS ORDER IS NONPRECEDENTIAL1 Joan Williams , FPO, AE, pro se. Maxwell Selz and Jonathan Beyer , APO, AE, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). VACATE the initial decision, and REMAND this appeal to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2The agency employed the appellant as a Guidance Counselor at Naples Middle School/High School in Naples, Italy. Initial Appeal File (IAF), Tab 1 at 1, 7, 17. On March 4, 2022, the agency issued her a Notice of Termination During Trial Period. Id. at 9. Four days later, on March 8, 2022, the agency rescinded the termination and reinstated the appellant to her former position. Id. at 11, 20. ¶3On March 20, 2023, the appellant filed a whistleblower retaliation complaint with the Office of Special Counsel (OSC) alleging that the agency was retaliating against her for making protected disclosures, including by terminating her employment. Id. at 4, 14, 19-20, 26. On May 16, 2023, OSC notified the appellant that it had terminated its inquiry into her allegations and of her right to seek corrective action from the Board. Id. at 26. On July 10, 2023, the appellant filed an IRA appeal with the Board, again challenging her termination and alleging gross negligence and due process violations by the agency. Id. at 3. She also asserted, without specifics, that the agency had violated veterans’ preference requirements. Id. at 5. The administrative judge issued an order which set forth the appellant’s burden to establish jurisdiction over an IRA appeal and ordered her to present evidence and argument on the jurisdictional issue. IAF, Tab 3. The appellant did not respond to the administrative judge’s order. In response, the agency argued that the appeal should be dismissed for lack of jurisdiction. IAF, Tab 6 at 4. The administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction on the basis that the appellant’s description of her disclosures was too vague to meet the nonfrivolous pleading standard. IAF, Tab 7, Initial Decision (ID) at 4-6. 2 ¶4The appellant has filed a timely petition for review in which she provides additional details in support of her claims. Petition for Review (PFR) File, Tab 1. The agency has responded to the petition for review. PFR File, Tab 5. On review, the appellant provides a narrative timeline and documentation in support of her allegations of whistleblower reprisal. PFR File, Tab 1 at 6-39. She alleges that, in retaliation for her disclosures and activity, agency officials took a number of actions against her between January 2022 and June 2023, including issuing her the March 4, 2022 termination notice. Id. at 7-14. DISCUSSION OF ARGUMENTS ON REVIEW ¶5The Board has jurisdiction over an IRA appeal if the appellant has exhausted her administrative remedies before OSC and makes nonfrivolous allegations that (1) she made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b) (9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined under 5 U.S.C. § 2302(a).2 Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). The appellant demonstrated by preponderant evidence that she exhausted some, but not all, of her claims before OSC. ¶6The administrative judge did not address whether the appellant exhausted her allegations of whistleblower reprisal before OSC. Instead, the administrative judge held that the content of the appellant’s alleged protected disclosures was “far too vague, unsupported, and constitute mere pro forma allegations.” ID at 4. He based his conclusion on the appellant’s only description of her disclosures below, which came from the OSC complaint she attached to her initial appeal. 2 The appellant does not reassert her claims of gross negligence and due process violations on review. IAF, Tab 1 at 3. The Board lacks jurisdiction over these claims in an IRA appeal, and therefore we decline to consider them further. See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 15 (2016) (determining that the Board does not have jurisdiction to hear a claim of harmful procedural error in the context of an IRA appeal).3 IAF, Tab 1 at 19. In her OSC complaint, she described her disclosures as “concerns related to professional practices not followed by administrators that impact students as it relates to student records, violation of policy, [and] unfair advantage.” Id. ¶7Although we discern no error in the administrative judge’s reasoning, the appellant has presented more specific allegations on review concerning her disclosures. See Schmittling v. Department of the Army , 219 F.3d 1332, 1336-37 (Fed. Cir. 2000) (explaining that, in an IRA appeal, the Board may find it lacks jurisdiction based on an appellant’s failure to meet any one of the jurisdictional prerequisites); see also Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 6 (finding that a nonfrivolous allegation of a protected disclosure must be specific and detailed rather than a vague allegation of wrongdoing). On review, she expands upon the allegations that she made below, and she submits documents, most of which were not in the record below. Jurisdiction may be raised at any time. Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016). Therefore, we have considered the appellant’s new arguments and evidence to the extent that they impact the Board’s jurisdiction over this appeal. See id. Because we are considering the appellant’s submissions based on their jurisdictional implications, we need not resolve the parties’ arguments on review as to whether she exercised due diligence in presenting this information below. PFR File, Tab 1 at 4-5, Tab 5 at 5-6. ¶8The appellant identifies four specific putative disclosures on review, as follows.3 She alleges that, in September 2021, a colleague improperly acted as an Advanced Placement (AP) Coordinator against agency policy, and improperly asked the appellant to sign documents as the AP Coordinator. PFR File, Tab 1 at 6. She also claims that, in January 2022, a teacher asked her to “change [a] student[’s] historical record (transcript) which would result in a student receiving 3 In light of the appellant’s pro se status, we have interpreted her arguments in the light most favorable to her. See Miles v. Department of Veterans Affairs , 84 M.S.P.R. 418, ¶ 10 (1999).4 an unfair advantage (weighted [grade point average (GPA)]).” Id. at 8-9. She further alleges that, in February 2022, the school Principal asked her to change his daughter’s schedule without following the agency’s procedures for such a request. Id. at 9. Finally, according to the appellant, in February 2023, the Principal “threatened [her] with administrative action” after insisting that she “use forms and documents not approved by the [Overseas Federation of Teachers (OFT)] in compliance with [the agency’s] Collective Bargaining Agreement (CBA).” Id. at 13. ¶9Because we consider these jurisdictional allegations for the first time here, we start with the issue of whether the appellant proved exhaustion of her OSC remedy. An appellant must prove exhaustion by preponderant evidence. 5 U.S.C. § 1214(a)(3); Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶ 5; 5 C.F.R. § 1201.57(c). 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). ¶10Although the Board’s jurisdiction over an IRA appeal is limited to those issues that have been previously raised with OSC, the appellant may provide a more detailed account of her whistleblowing before the Board than she did to OSC. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10 (citations and internal quotations omitted). The substantive requirements of exhaustion are met when an appellant has provided OSC with sufficient basis to pursue an investigation. Id. An appellant may demonstrate exhaustion through her initial OSC complaint, correspondence with OSC, or through other sufficiently reliable evidence. Id., ¶ 11. ¶11We conclude that the appellant exhausted three of the four specific purported disclosures she identifies on review. As detailed above, the appellant alleged to OSC that she disclosed “a series of concerns related to professional practices not followed by administrators that impact students as it relates to5 student records, violation of policy, [and] unfair advantage.” IAF, Tab 1 at 19-20. She further alleged that, in response to these disclosures, the agency initially terminated her. Id. at 20. Although the agency rescinded her termination 4 days later, she alleged that the agency then took the following actions against her: (1) reassigned her; (2) created a hostile work environment; (3) placed her on an improvement plan; and (4) changed her duties/working conditions. Id. at 20-21. In OSC’s closeout letter, which the appellant provided for the first time on review, OSC explained that, in correspondence with the appellant that does not appear in the record, she shared “several instances of the agency manipulating student’s [sic] permanent education records” and that the agency “threatened [her] with administrative action after insisting that [she] use forms that had not been approved.” PFR File, Tab 1 at 15. ¶12We find that the appellant’s allegations to OSC could have led to an investigation of her putative disclosures that a teacher asked her to change a student’s transcript in January 2022, the following month the Principal asked her to change his daughter’s schedule, and, in February 2023, the Principal insisted that the appellant use forms that were not OFT-approved. Id. at 8-9, 13. Each of these alleged disclosures concerns the use of improper forms or manipulation of student records, matters that the appellant raised with OSC. Id. at 15. ¶13However, the appellant did not exhaust one of her purported disclosures. According to the appellant, in September 2021, she disclosed that the agency violated the policies of OFT, an agency-endorsed non -profit, when an individual acted in the role of AP Coordinator while serving as an AP Government teacher and asked the appellant to do the same despite the appellant’s daughter’s enrollment in AP classes. Id. at 6. The appellant has not alleged that this disclosure concerned improperly changing records or using improper forms. Id. Because the appellant did not provide OSC with a sufficient basis to pursue an investigation into this disclosure, she has not proven by preponderant evidence6 that she exhausted this allegation before OSC. See Chambers, 2022 MSPB 8, ¶ 10. ¶14As to the alleged personnel actions, the appellant did not exhaust with OSC her reassignment from serving high school students to serving middle school students. PFR File, Tab 1 at 13-14. This action allegedly took place in June 2023, after OSC had closed out its investigation. Id. at 13, 15-17. Therefore, the Board lacks jurisdiction over this reassignment. The appellant established jurisdiction over her IRA appeal. ¶15A nonfrivolous allegation of a protected whistleblowing disclosure is an allegation of facts that, if proven, would show that the appellant disclosed a matter that a reasonable person in her position would believe evidenced one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 8 (2013); 5 C.F.R. § 1201.4(s); see Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1368-69 (Fed. Cir. 2020) (quoting 5 C.F.R. § 1201.4(s) and other sources as supporting the proposition that, in determining whether an allegation is nonfrivolous, the Board may not weigh the agency’s contrary evidence). The appellant’s allegations of agency wrongdoing in February 2022 and February 2023, unaccompanied by disclosures, are not protected. ¶16As discussed above, the appellant argues that she disclosed wrongdoing in February 2022. PFR File, Tab 1 at 9. Specifically, she claims that the Principal directed her to remove a course from his daughter’s schedule outside of the deadline designated by Department of Defense Education Activity (DODEA) Instruction 1367.01 (Instruction 1367.01). Id.; DODEA, Administrative Instruction 1367.01: High School Graduation Requirements and Policy (July 27, 2021) https://www.dodea.edu/regulation/high-school-graduation-requirements- and-policy (last visited Aug. 26, 2024); see Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434, ¶ 19 n.3 (2016) (taking official notice of an agency7 directive available on the internet). The appellant does not allege that she disclosed to anyone that the Principal’s actions violated Instruction 1367.01 or were otherwise improper. Rather, she asserts that she responded to the Principal and others via email, notifying them of the proper process for modifying a student’s schedule. PFR File, Tab 1 at 9. Similarly, the appellant has not nonfrivolously alleged that she made a protected disclosure in February 2023 to the Principal that he had ordered her to use forms that were not approved by OFT or in violation of the CBA. Although she alleges that she was threatened with administrative action for declining to use forms, she does not allege that she advised anyone that use of the forms was wrongful. Id. at 13. The appellant established jurisdiction over her January 2022 disclosure. ¶17As discussed above, the appellant also alleges that a teacher requested that the appellant change a student’s transcript. Id. at 8. According to the appellant, she declined to make the change, notifying the teacher that granting the request at that time would impact the student’s GPA in violation DODEA Administrative Instruction 1367.01. Id. at 8-9. ¶18We find that the appellant has made a nonfrivolous allegation that she reasonably believed that her statement to her coworker evidenced potential wrongdoing. An appellant is not required to identify the particular statutory or regulatory provision that the agency allegedly violated when her statements and circumstances of those statements clearly implicate an identifiable law, rule, or regulation. Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 17 (2011). Although the appellant has not identified the specific provision, she may have been alluding to section 5.1 of Instruction 1367.01. That section dictates the process for calculating students’ GPAs. The appellant may reasonably have believed that altering a student’s GPA was inconsistent with the process or with the stated purpose of the process of ensuring that “[t]he GPA for all students is calculated on an equitable basis.” 8 ¶19Further, an appellant is not required to correctly label the category of wrongdoing. El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 11 (2015), aff’d per curiam, 663 F. App’x 921 (Fed. Cir. 2016). Therefore, we have also considered whether she might reasonably have believed that her disclosure evidenced an abuse of authority, one of the categories of wrongdoing identified in 5 U.S.C. § 2302(b)(8). An abuse of authority occurs when there is an “[a]rbitrary or capricious exercise of authority that is inconsistent with the [agency’s] mission.” Smolinski v. Merit Systems Protection Board , 23 F.4th 1345, 1352 (Fed. Cir. 2022) (quoting 10 U.S.C. § 2409(g)(6)(1), since transferred to 10 U.S.C. § 4701(g)(6)(1) (defining “abuse of authority” for purposes of whistleblower protections for Department of Defense and National Aeronautics and Space Administration contract employees); 41 U.S.C. § 4712(g)(1) (defining “abuse of authority” for purposes of whistleblower protections for Federal contract employees)). The appellant indicated in her petition for review that she believed that changing the student’s transcript would result in an “unfair advantage (weighted GPA).” PFR File, Tab 1 at 8. Her allegations are sufficient to constitute a nonfrivolous allegation that she reasonably believed the teacher’s request constituted an abuse of authority that was contrary to the DODEA’s stated educational mission and emphasis on equity. See https://www.dodea.edu/about/blueprint-continuous-improvement (last visited Aug. 26, 2024). ¶20Although the appellant did not allege that any wrongdoing had occurred at the time she spoke to the teacher in January 2022, her allegations are sufficient at the jurisdictional stage of this IRA appeal. The Board has found that an employee need not wait until an actual violation of law occurs for her disclosure to be protected under whistleblower reprisal statutes. Covington v. Department of the Interior, 2023 MSPB 5, ¶ 38. Such a requirement would mean losing an opportunity to avert wrongdoing and would have a chilling effect on whistleblowing. Id. When, as here, a disclosure concerns a potential violation of9 law, as opposed to an event that has already taken place, an appellant must prove that she reasonably believed the potential wrongdoing was real and immediate. Id. In order to strike a balance between preventing Government wrongdoing on the one hand and encouraging “healthy and normal” discussions of “possible courses of action” that may avoid such wrongdoing on the other hand, the determination of whether the disclosure is protected “depends on the facts.” Id. (quoting Reid v. Merit Systems Protection Board , 508 F.3d 674, 678 (Fed. Cir. 2007)). Therefore, the determination of whether an appellant reasonably believed the wrongdoing was real and immediate should be evaluated at the merits stage of an IRA appeal, and not at the jurisdictional stage. Reid, 508 F.3d at 678. Under the circumstances, we find that the appellant has nonfrivolously alleged that she reasonably believed when she made her disclosure to the teacher in January 2022 that the wrongdoing was real and immediate. Our conclusion is supported by her assertion on review that, notwithstanding her guidance, an Assistant Principal made the prohibited change to the student’s transcript approximately 8 months later.4 Id. at 9. 4 The appellant also alleges for the first time on review that a colleague “asked for a racial breakdown of student data to be used in a training where if data was disaggregated it could identify students.” PFR File, Tab 1 at 7. The appellant states that she “shared [her] discomfort with that and referred her to the District.” Id. The appellant also states for the first time that the agency retaliated against her for an equal employment opportunity (EEO) complaint. Id. at 10-11. Disclosures of practices made unlawful by Title VII are not covered by 5 U.S.C. § 2302(b)(8). McCray v. Department of the Army, 2023 MSPB 10, ¶ 21 (stating that activity and disclosures protected under Title VII are not protected under 5 U.S.C. § 2302(b)(8)); Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 10-22 (explaining that 5 U.S.C. § 2302(b)(8) does not include disclosures of alleged wrongdoing under Title VII), aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023). Further, an appellant’s own EEO complaint in which she does not seek to remedy reprisal for whistleblowing is not protected activity within the Board’s IRA jurisdiction. Edwards, 2022 MSPB 9, ¶¶ 24-25 (finding that an appellant’s complaints and disclosures to an agency’s EEO office seeking to remedy purported Title VII retaliation were not within the purview of sections 5 U.S.C. § 2302(b)(9)(A)(i) or (b)(9)(B)); see McCray, 2023 MSPB 10, ¶¶ 26-30 (finding that an employee’s pursuit of a grievance was not a protected activity under 5 U.S.C. § 2302(b) (9)(C) because so interpreting that provision would effectively subsume (b)(9)(A), which prohibits retaliation for the “exercise of any appeal, complaint, or grievance right10 ¶21We next turn to whether the appellant has nonfrivolously alleged that her protected disclosure was a contributing factor in any of the alleged personnel actions. To satisfy the contributing factor criterion at the jurisdictional stage in an IRA appeal, an appellant need only raise a nonfrivolous allegation that the fact or content of the protected disclosure was one factor that tended to affect the personnel action in any way. Abernathy v. Department of the Army , 2022 MSPB 37, ¶ 15. One way to establish contributing factor is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. Id. 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 disclosure by demonstrating that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action. Id. ¶22Here, the appellant alleges that, 8 months after she made her disclosure to a teacher that doing so was improper, the Assistant Principal changed the student’s transcript. PFR File, Tab 1 at 9. The appellant implies that the Assistant Principal was aware of the appellant’s disclosure when the Assistant Principal changed the student’s transcript. Id. Any doubt or ambiguity as to whether the appellant made nonfrivolous jurisdictional allegations should be resolved in favor of finding jurisdiction. Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 6. Therefore, although the appellant has not explicitly claimed that the granted by any law, rule, or regulation”). The appellant has not alleged that she sought to remedy whistleblower reprisal in her EEO complaint. Therefore, her allegations regarding disclosures of her colleague’s request for information and her own EEO complaint do not confer Board jurisdiction over her appeal. 11 Assistant Principal learned of the appellant’s disclosure, we conclude that she has nonfrivolously alleged that the Assistant Principal was aware of it. ¶23The appellant alleged to OSC that the Assistant Principal was involved in the personnel actions taken against her. IAF, Tab 1 at 20-21. She has provided evidence on review that the Assistant Principal was present at the meeting at which the Principal presented the appellant with notice of her termination. PFR File, Tab 1 at 19-20. The appellant’s averments constitute a nonfrivolous allegation of constructive knowledge, i.e., that the Assistant Principal influenced the Principal’s decision to terminate the appellant’s employment and take the other alleged personnel actions. ¶24The Board has held that personnel actions occurring within 1 to 2 years after the protected disclosures are sufficient to meet the timing portion of the knowledge/timing test. Abernathy, 2022 MSPB 27, ¶ 15. All of the personnel actions that the appellant raised with OSC allegedly took place between her March 2022 termination and May 2023, when OSC closed its investigation into her complaint. PFR File, Tab 1 at 17; IAF, Tab 1 at 20-21. Because the appellant asserts that the agency took these actions within 2 years of her January 2022 disclosure, she has nonfrivolously alleged that she met the timing element of the knowledge/timing test. Because the appellant has established jurisdiction over her appeal, she is entitled to her requested hearing on the merits. IAF, Tab 1 at 2; See Cooper, 2023 MSPB 24, ¶ 22. The appellant has not established jurisdiction over her allegation that the agency violated her veterans’ preference rights. ¶25The appellant alleged below, and reasserts on review, that the agency violated her veterans’ preference rights. IAF, Tab 1 at 5; PFR File, Tab 1 at 8. The administrative judge acknowledged the claim and advised the appellant that she could file a separate appeal with the Board under the Veterans Employment Opportunities Act of 1998 (VEOA). ID at 6 n.5. The Board has jurisdiction over a VEOA appeal when an appellant has exhausted her administrative remedies with12 the Department of Labor (DOL), makes a nonfrivolous allegation that she was a preference eligible, and nonfrivolously alleges that the agency violated a statute or regulation relating to veterans’ preference. Davis v. Department of Defense , 2022 MSPB 20, ¶ 5 n.1. ¶26The appellant indicated below that she has not filed a complaint with DOL. IAF, Tab 1 at 4. She does not state on review that she has cured this deficiency. If the appellant believes that she can establish jurisdiction over her claim that the agency violated her veterans’ preference rights, she may file a new appeal with the regional office. We express no opinion on the timeliness of, or the Board’s jurisdiction over, such an appeal. ORDER ¶27For the reasons discussed above, we remand this case to the regional office for further adjudication of her IRA appeal in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.13	Williams_JoanDC-1221-23-0592-W-1_Remand_Order.pdf	2024-08-26	JOAN WILLIAMS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-23-0592-W-1, August 26, 2024	DC-1221-23-0592-W-1	NP
626	https://www.mspb.gov/decisions/nonprecedential/Zheng_FolayanCH-1221-20-0105-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FOLAYAN D. ZHENG, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER CH-1221-20-0105-W-1 DATE: August 26, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Folayan D. Zheng , Carmel, Indiana, pro se. Eric Y. Hart , Esquire, Indianapolis, Indiana, 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 as untimely filed. For the reasons discussed below, we DENY the appellant’s petition for review. We AFFIRM the initial decision insofar as it found the appellant’s individual right of action (IRA) 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). untimely filed. However, we FORWARD the appellant’s involuntary resignation appeal to the regional office for docketing because she did not make a binding election to seek corrective action with the Office of Special Counsel (OSC). BACKGROUND Effective April 26, 2018, during her probationary period, the appellant resigned from her position with the agency as a GS-11 Information Technology Specialist in the competitive service. Initial Appeal File (IAF), Tab 17 at 40. Thereafter, on November 24, 2019, she filed an appeal with the Board. IAF, Tab 1. On her initial appeal form, she indicated that she was challenging an involuntary resignation. Id. at 5. She also indicated that she had filed a complaint with OSC for which she had received a decision on April 3, 2019. Id. at 6. The appellant provided a corresponding close-out letter from OSC dated April 3, 2019, which informed her that it was terminating its investigation into her complaint, i.e., OSC File No. MA-19-1725, and that she could appeal the matter to the Board within 65 days. Id. at 3. The close-out letter indicated that OSC was terminating its investigation into the appellant’s allegations that she had, among other things, been coerced into resigning in reprisal for equal employment opportunity (EEO) activity and various disclosures. Id. In her initial filings with the Board, the appellant referenced an additional OSC complaint number, i.e., OSC File No. MA-19 -3968, for which she averred that she had received a “final OSC communication” in October 2019; however, she did not provide any additional information discernably related to this complaint. Id. at 1. She also referenced three prior EEO complaints that she had filed with the agency, id. at 5, and submitted numerous documents, the majority of which were filings associated therewith, id. at 16-165. The appellant did not request a hearing on the matter. Id. at 4. The administrative judge issued a jurisdictional order wherein he explained the circumstances under which the Board has jurisdiction to adjudicate IRA2 appeals, and he ordered the appellant to file specific evidence and argument regarding jurisdiction. IAF, Tab 5 at 2-8. The jurisdictional order did not address the appellant’s apparent attempt to challenge her involuntary resignation independent of her IRA appeal. IAF, Tab 1 at 5. The administrative judge also issued a timeliness order wherein he explained that it appeared as though the filing period in the matter began on April 3, 2019, i.e., the date of OSC’s close-out letter; however, the appellant’s Board appeal was not filed until November 24, 2019, some 170 days late. IAF, Tab 6 at 2. Accordingly, he informed the appellant of her burden regarding timeliness, and he ordered her to file evidence/argument regarding the same. Id. at 2-3. The appellant thereafter submitted three filings responsive to one or both of these orders. IAF, Tabs 9-10, 12. Regarding the timeliness issue, the appellant argued that the administrative judge should invoke the doctrine of equitable tolling because (1) she had been confused by deadlines associated with her EEO matters and (2) OSC’s April 3, 2019 close-out letter had failed to sufficiently address all of the matters that she had raised in her OSC complaint. IAF, Tab 9 at 3-8. Following its receipt of the appellant’s pleadings, the agency filed a motion to dismiss the matter as untimely filed and for lack of jurisdiction. IAF, Tab 17 at 4-8. With its motion, the agency provided a copy of a February 14, 2019 final agency decision (FAD) issued in response to a May 21, 2018 EEO complaint filed by the appellant. Id. at 29-39. The FAD indicated that the appellant’s EEO complaint had alleged, among other things, that the agency’s reprisal for her prior protected EEO-related activity had compelled her to resign from her position. Id. at 30-39. The FAD concluded, however, that the appellant had not prevailed on any of her claims and, therefore, was entitled to no relief. Id. at 37. The FAD did not provide the appellant with her Board appeal rights. Id. at 37-39. Based on the written record, the administrative judge issued an initial decision dismissing the appeal as untimely filed. IAF, Tab 23, Initial Decision3 (ID) at 1-2, 9. In so doing, the administrative judge explained that the appellant had filed her IRA appeal over 7 months after her receipt of OSC’s close-out letter, well outside the statutory time limit. ID at 6. He concluded that neither of the appellant’s apparent arguments, i.e., (1) she did not believe that she could file her Board appeal until an EEO matter was resolved and (2) OSC’s close -out letter had failed to sufficiently address all of the issues she had raised, provided a basis to apply equitable tolling. ID at 6-8. He explained that, although the appellant had referenced a separate OSC complaint, the appellant had not provided any information relevant to this complaint and, in any event, had acknowledged that OSC had informed her that it had terminated its investigation into the matter in July 2019, which would necessarily render her November 24, 2019 Board appeal untimely. ID at 7 n.3. The administrative judge explained that, “because the record [was] sufficiently developed to make a clear determination on timeliness,” he did not need to resolve the issue of jurisdiction. ID at 2 n.1. The appellant has filed a petition for review, and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 5. In her petition, the appellant argues the following: (1) her IRA appeal was timely filed because OSC had reopened its investigation; (2) the administrative judge erred by not invoking the doctrine of equitable tolling; and (3) the agency never informed her of her Board appeal rights. PFR File, Tab 1 at 1-14. The appellant also provides additional documents.2 Id. at 15-49. 2 The appellant’s additional documents include a new version of an OSC Form -11 dated December 30, 2018, an OSC Form-11 dated March 29, 2019, a May 30, 2019 letter to OSC, and email correspondence with an OSC attorney. PFR File, Tab 1 at 15-49. The appellant provides no explanation as to why she did not submit this evidence, all of which predates the initial decision, to the administrative judge. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980 (finding that the Board generally will not consider evidence submitted for the first time with the petition for review absent a showing that it was unavailable before the record was closed despite the party’s due diligence); 5 C.F.R. § 1201.115(d). Moreover, none these documents, some of which we have discussed in greater detail herein, are material to the outcome of this appeal. 4 DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s assertion regarding OSC’s purported reopening of its investigation does not provide a basis to disturb the administrative judge’s conclusion that the appellant’s IRA appeal was untimely filed. The appellant contends that her Board appeal was timely filed because, after she informed OSC that it had failed to address all of her claims in its April 3, 2019 close-out letter for OSC File No. MA-19-1725, OSC purportedly reopened its investigation under a new file number, i.e., OSC File No. MA -19- 3968. Id. at 3-4. She asserts that OSC File No. MA -19-3968, and, by extension, OSC File No. MA-19-1725, remained open until October 16, 2019, thereby rendering her November 24, 2019 Board appeal timely filed. Id. at 4-5, 9-10; IAF, Tab 1. We disagree. An appellant may file an IRA appeal with the Board once OSC closes its investigation into her complaint and no more than 60 days have elapsed since notification of the closure was provided to her. 5 U.S.C. § 1214(a)(3)(A); see Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 6 (2014). Under the Board’s regulations implementing that statutory time limit, 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. See Heimberger , 121 M.S.P.R. 10, ¶ 6; 5 C.F.R. § 1209.5(a)(1). The appellant bears the burden of proving by preponderant evidence3 that she timely filed her appeal. See Pacilli v. Department of Veterans Affairs , 113 M.S.P.R. 526, ¶ 8, aff’d, 404 F. App’x 466 (Fed. Cir. 2010); 5 C.F.R. § 1201.57(c). The Board has found that OSC’s reopening of an appellant’s case after it has already issued a close-out letter in the matter creates a new statutory filing period, providing the appellant with the right to file an IRA appeal either within 65 days after OSC issued its new close-out letter or, in the absence of a 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).5 final OSC determination, at any time following 120 days from OSC’s reopening of the matter. Kalus v. Department of Homeland Security , 123 M.S.P.R. 226, ¶¶ 9-10 (2016). Here, even assuming, as alleged, that OSC reopened OSC File No. MA-19- 1725 under OSC File No. MA-19-3968, a different outcome is not warranted. As set forth in the initial decision, the appellant acknowledged that, in July 2019, she received an email indicating that OSC has closed its investigation into OSC File No. MA-19-3968. ID at 7 n.3; IAF, Tab 9 at 6, Tab 12 at 14. Indeed, on review, the appellant provides a July 12, 2019 email from an OSC employee with the subject line “OSC MA-19-3968,” which stated unequivocally that “the matter is closed.” PFR File, Tab 1 at 30-31. Other documents that the appellant provides indicate that the appellant, who apparently disagreed with this outcome, continued to send follow-up emails to an OSC attorney, including a September 13, 2019 email request for OSC to once again reopen the matter. Id. at 32-35. On October 16, 2019, the OSC attorney responded to the appellant’s emails and explained that the matter had been closed in July 2019. Id. at 35. That an OSC employee responded to the appellant’s emails on October 16, 2019, did not negate the July 12, 2019 closure of the matter or otherwise restart the statutory time period. See Kalus, 123 M.S.P.R. 226, ¶ 10 (explaining that an appellant’s mere request for OSC to reopen its investigation does not affect the deadline to file an IRA appeal with the Board; rather, it is OSC’s decision to reopen that restarts the statutory time period); see also Heimberger , 121 M.S.P.R. 10, ¶¶ 7-8 (explaining that neither OSC’s denial of a request to reopen nor its denial of a reconsideration request restarts the statutory time period). Thus, the appellant admittedly received notice that OSC had closed the matter more than 65 days before she filed her appeal with the Board, and we find that the appellant’s assertions regarding OSC’s purported reopening of its investigation do not provide a basis to disturb the administrative judge’s conclusion that the appellant’s IRA appeal was untimely filed. 6 The appellant’s assertions regarding equitable tolling are unavailing. The appellant argues that the administrative erred by not invoking the doctrine of equitable tolling. PFR File, Tab 1 at 5-13. In particular, she contends that equitable tolling was appropriate because (1) personnel in the agency’s EEO office engaged in a series of improprieties and (2) OSC did not provide her with either a formal close-out letter or her Board appeal rights when it closed OSC File No. MA -19-3968. Id. The Board cannot waive the statutory time limit for filing an IRA appeal for good cause. Heimberger, 121 M.S.P.R. 10, ¶ 9. However, the Board might invoke the doctrine of equitable tolling to suspend the filing period for equitable reasons, such as when the appellant has been induced or tricked by her adversary’s misconduct in allowing the deadline to pass or filed a defective pleading during the statutory period. Id., ¶ 10; 5 C.F.R. § 1209.5(b). The Board only applies this remedy in unusual circumstances and generally requires a showing that the litigant has been pursuing her rights diligently and some extraordinary circumstances stood in her way. Heimberger, 121 M.S.P.R. 10, ¶ 10; 5 C.F.R. § 1209.5(b). First, the appellant contends that equitable tolling is appropriate because the agency’s EEO office engaged in various improprieties, including frequently misinterpreting her EEO complaints, continually failing to address the entirety of her EEO complaints, and indefinitely deferring its decisions on her EEO complaints. PFR File, Tab 1 at 5-9, 19. We find these assertions unavailing. Indeed, the appellant does not allege, nor does the record suggest, that the purported misdeeds of EEO personnel ever involved inducement or trickery regarding the statutory deadline relevant to her IRA appeal. See Heimberger , 121 M.S.P.R. 10, ¶ 10. Instead, the appellant’s filings suggest that she disagreed with the handling/resolution of many EEO-related matters and sought resolution for these issues while the filing deadline for her IRA appeal passed. See Gingery v. Office of Personnel Management , 119 M.S.P.R. 43, ¶ 16 (2012) (finding that7 the appellant’s allegation that he was waiting for the Office of Personnel Management to reconsider its decision while the filing deadline at the Board passed did not support equitable tolling); see also Brown v. U.S. Postal Service , 110 M.S.P.R. 381, ¶ 12 (2009) (explaining that an appellant’s lack of due diligence in preserving his legal rights is not a basis for equitable tolling). Thus, a different outcome is not warranted. Second, the appellant argues that equitable tolling is appropriate because, in closing OSC File No. MA -19-3968, OSC failed to provide her with either a formal close-out letter or her Board appeal rights. PFR File, Tab 1 at 4, 9-10. We disagree. Here, on April 3, 2019, OSC provided the appellant with her Board appeal rights regarding OSC File No. MA-19-1725. IAF, Tab 1 at 3. As stated, OSC thereafter purportedly reopened the matter under OSC File No. MA -19-3968 and, on July 12, 2019, closed the matter once again via email. PFR File, Tab 1 at 30-31. Following a July 12, 2019 email inquiry from the appellant regarding whether she would receive another formal close-out letter with her Board appeal rights, id. at 31-32, on July 16, 2019, an OSC attorney explicitly informed the appellant that the July 12, 2019 email constituted the close-out letter and that, given the nature of her allegations, she “[did] not have an appeal right,” id. at 32.4 Although this language could have misled the appellant regarding the appeal rights that she had previously received on April 3, 2019, we find, given the circumstances here, that there is no basis to apply equitable tolling. Indeed, the record does not indicate, and the appellant does not allege, that she either relied on the language regarding her appeal rights in the July 12, 2019 email or 4 OSC presumably informed the appellant that she did not have a Board appeal right because, following her receipt of OSC’s April 3, 2019 close-out letter, IAF, Tab 1 at 3, the appellant contacted OSC and averred that OSC had incorrectly interpreted her complaint as having alleged whistleblower retaliation, PFR File, Tab 1 at 29. In particular, she stated to OSC that her “[OSC] complaints did not ever allege that [OSC should] investigate reprisal for whistleblowing.” Id. Thus, in short, the appellant faults OSC for failing to provide her with additional IRA appeal rights after she had informed OSC she had not alleged whistleblower reprisal, i.e., she had not made a claim that would form the basis of an IRA appeal. 8 otherwise believed that she lacked Board appeal rights; rather, the record indicates, and the appellant concedes, that she knew she could appeal OSC’s determination to the Board; however, she did not timely do so because (1) she wanted to first resolve various EEO matters and (2) she disagreed with OSC’s decision to close its investigation. Id. at 5, 12-13, 31-35; see Heimberger , 121 M.S.P.R. 10, ¶ 12 (finding no basis for equitable tolling when, although OSC’s close-out letter contained misleading language, there was no indication that the misleading language was causally related to the appellant’s untimely filing). Indeed, the appellant continued to request further investigation from OSC until October 16, 2019, when she apparently accepted that OSC had, in fact, closed the matter; shortly thereafter, she appealed to the Board. PFR File, Tab 1 at 31-35; IAF, Tab 1. Thus, a different outcome is not warranted. We forward the matter for docketing of the appellant’s involuntary resignation claim as an adverse action appeal because the appellant did not make a knowing and informed election of remedies. In her initial appeal, the appellant stated that she was appealing an involuntary resignation. IAF, Tab 1 at 5. In addition, she provided information and documentation regarding her OSC complaint, in which she had alleged that her resignation had been coerced by the agency in retaliation for her whistleblowing disclosures. Id. at 1-3, 29-31. An appellant may pursue an involuntary resignation claim as a personnel action in an IRA appeal after exhausting her remedies with OSC or she may file an appeal challenging the action directly with the Board, in which case she must show that her resignation was involuntary and was therefore tantamount to an appealable removal. See Colbert v. Department of Veterans Affairs , 121 M.S.P.R. 677, ¶ 12 (2015); Salazar v. Department of Army , 115 M.S.P.R. 296, ¶ 9 (2010). Under 5 U.S.C. § 7121(g), an appellant who has been subjected to an action appealable to the Board, and who alleges that she has been affected by a prohibited personnel practice other than a claim of discrimination under 5 U.S.C.9 § 2302(b)(1), may elect one, and only one, of the following remedies: (1) an appeal to the Board under 5 U.S.C. § 7701; (2) a grievance filed under the provisions of a negotiated grievance procedure;5 or (3) an OSC complaint, potentially followed by an IRA appeal. Corthell v. Department of Homeland Security, 123 M.S.P.R. 417, ¶ 15 (2016), overruled on other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39; 5 C.F.R. 1209.2(d)(1). An election under 5 U.S.C. § 7121(g) is binding only if it was knowing and informed. Corthell, 123 M.S.P.R. 417, ¶ 17. An agency’s failure to inform an employee fully of her potential appeal rights under 5 U.S.C. § 7121(g) and any limitation on those rights precludes a finding that the appellant made a knowing and informed election of remedies under that provision. Id. Here, although the appellant sought corrective action with OSC before she appealed the matter to the Board, i.e., she elected an avenue of redress with OSC, the record is devoid of any indication that this election was knowing and informed. IAF, Tab 1 at 3; see 5 U.S.C. § 7121(g)(4)(C) (stating that an individual will be considered to have elected to pursue a remedy with OSC if the individual has sought corrective action by making an allegation under 5 U.S.C. § 1214(a)(1)). In this regard, there is no indication that the agency issued a letter of decision regarding the appellant’s resignation that might have informed her of her election rights. See 5 C.F.R. § 1201.21. Moreover, there is no indication that the appellant was informed of either her potential remedies or the preclusive effect of an election through any other means, such as the February 14, 2019 FAD. IAF, Tab 17 at 37-39. In light of these circumstances, the appellant’s election to seek corrective action with OSC was not binding; thus, because it appears that the appellant was attempting to appeal her allegedly involuntary 5 Insofar as the appellant was a probationary employee at the time of her resignation, IAF, Tab 17 at 40, this avenue of redress is inapplicable here, see Scalera v. Department of the Navy , 102 M.S.P.R. 43, ¶ 10 (2006) (explaining that probationary employees in the Federal Government have no right to grieve under a negotiated procedure). 10 resignation directly with the Board, we forward the matter for docketing as an involuntary resignation appeal.6 ORDER For the reasons discussed above, we affirm the initial decision, which dismissed the appellant’s IRA appeal as untimely. We forward the appellant’s involuntary resignation claim to the regional office for further adjudication in accordance with this Order. 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 6 The issues of timeliness and jurisdiction are typically inextricably intertwined in an appeal based on an alleged involuntary resignation because, if the agency has subjected the employee to an appealable action, then the agency’s failure to inform an employee of her right to appeal may excuse an untimely filed Board appeal. Brown v. U.S. Postal Service, 115 M.S.P.R. 609, ¶ 5, aff’d, 469 F. App’x 852 (Fed. Cir. 2011). Generally, an appellant may establish good cause for an untimely filing of an involuntary resignation claim if the agency knew or should have known of facts indicating that the action was involuntary but did not inform the appellant of her appeal rights. Id. Here, as the appellant argues on review, although she alleged in one of her EEO complaints that she believed that her resignation had been involuntary, the agency never informed her of her Board appeal rights. PFR File, Tab 1 at 2; IAF, Tab 17 at 29-39. If an agency fails to advise an employee of appeal rights when it should have done so, the appellant is not required to show that she exercised due diligence in attempting to discover her appeal rights; rather, the appellant must show that she was diligent in filing an appeal after learning that she could do so. Brown, 115 M.S.P.R. 609, ¶ 5. 7 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.11 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If 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.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. 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	Zheng_FolayanCH-1221-20-0105-W-1_Final_Order.pdf	2024-08-26	FOLAYAN D. ZHENG v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-1221-20-0105-W-1, August 26, 2024	CH-1221-20-0105-W-1	NP
627	https://www.mspb.gov/decisions/nonprecedential/Lamour_NatachaAT-0752-23-0067-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NATACHA LAMOUR, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER AT-0752-23-0067-I-1 DATE: August 26, 2024 THIS ORDER IS NONPRECEDENTIAL1 Thomas Tierney , Esquire, Norwalk, Connecticut, for the appellant. Kenneth William , Atlanta, 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. REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which affirmed her removal. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial decision, and REMAND 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). case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND ¶2The appellant most recently held the GS-14 position of Supervisory Immigration Services Officer. Initial Appeal File (IAF), Tab 5 at 13. In June 2022, the agency proposed her removal based on three charges. IAF, Tab 8 at 5. The first charge was failure to follow supervisory instructions, and it included 21 specifications. Id. at 5-14. Most alleged that she was instructed, in January 2021, to stop sending unencrypted emails with sensitive information to her personal email account, but she continued to do so on numerous occasions between February and July 2021. Id. at 5-13. A handful of other specifications alleged that she was instructed, in April 2022, to copy her supervisor on all future emails, but the appellant did not do so on several occasions between April and May 2022. Id. at 13-14. The second charge in the proposed removal was failure to follow policy, and it included four specifications. Id. at 15-16. Three concerned other emails containing sensitive information that the appellant sent to her personal email address between August 2020 and January 2021, contrary to agency policy, and the fourth specification concerned the appellant making a copy of her work credential in March 2021. Id. The third and final charge in the proposed removal was neglect of duty, and it included two specifications. Id. at 17-18. One alleged that the appellant sent yet another email with sensitive information to her personal account, in August 2020, when she reportedly intended to send it to a different email address within the agency. Id. at 17. The other specification alleged that the appellant failed to maintain her access to several agency systems due to inactivity for a period between April and July 2021. Id. at 17-18. ¶3After the appellant responded to the proposal, the deciding official issued an October 2022 decision sustaining all the allegations and imposing the removal2 action. IAF, Tab 5 at 15-21. The appellant filed the instant appeal challenging her removal. IAF, Tab 1. ¶4The administrative judge developed the record and held the requested hearing before affirming the appellant’s removal. IAF, Tab 57, Initial Decision (ID). He found that the agency proved each specification under each charge, based largely on the appellant’s admissions about underlying facts.2 ID at 3-13. The administrative judge next found that the appellant did not prove her claims of race discrimination, ID at 13-16, or reprisal for engaging in equal employment opportunity (EEO) activity, ID at 16-17. Lastly, the administrative judge found that the agency met its burden regarding nexus and the reasonableness of its penalty. ID at 17-19. ¶5The appellant filed a petition for review. Petition for Review (PFR) File, Tab 3. The agency filed a response to the appellant’s petition for review, PFR File, Tab 12, and the appellant filed a reply, PFR File, Tab 16. DISCUSSION OF ARGUMENTS ON REVIEW ¶6In her petition for review, the appellant does not dispute the charges or the administrative judge’s findings about the same. She does, however, present several arguments about her affirmative defenses, PFR File, Tab 3 at 5-19, and the penalty, id. at 19-21. The appellant also argues that the administrative judge exhibited bias. Id. at 21-27. 2 Rather than dispute the facts underlying her removal, the appellant provided explanations for why she engaged in the conduct. For example, she indicated that she sent most of the offending emails to secure documentation because she anticipated unwarranted discipline from her new supervisor who had engaged in a pattern of harassment of the appellant and others. ID at 8, 10; IAF, Tab 6 at 6-9, 14-21; Hearing Transcript at 199-205 (testimony of the appellant). The appellant further described nearly 20 years of successful service before the commencement of this pattern of harassment, which led to her counseling through the Employee Assistance Program, numerous unanswered complaints about her supervisor, an extended leave of absence, medical treatment, and a request for transfer. IAF, Tab 6 at 6-9, 14-21.3 The administrative judge must further adjudicate the appellant’s discrimination claims. ¶7The appellant’s discrimination affirmative defense primarily concerns the actions of her direct supervisor, who held the position of Field Office Director. IAF, Tab 46 at 4-6. In her prehearing submission, the appellant stated that the Field Office Director created a hostile and toxic work environment based on the appellant’s race and ethnicity, which is Haitian. Id. at 5. The appellant alleged that the Field Office Director targeted individuals who were not Black and told the appellant that she “wasn’t [B]lack enough” because the appellant would not assist in her discrimination against non-Black employees. Id. The appellant further alleged that the Field Office Director was “a racist bully who hated all other races besides her own, which was African American.” Id. She then reiterated by stating that this individual “hated Caucasians, Asians, Hispanics, and ever[y] other [B]lack employee[] who [was] not of African descent.” Id. ¶8Just a couple of weeks after the appellant made these allegations, the administrative judge held a prehearing conference. The associated summary stated that the appellant was only raising claims of race discrimination and EEO reprisal. IAF, Tab 53. The prehearing conference summary made no mention of color, ethnicity, or national origin. Id. It does not state that the parties had discussed the particulars of the appellant’s discrimination allegations, and it does not state that the appellant had abandoned any of them. Id. ¶9Though given the opportunity to object to the prehearing conference summary, the appellant did not do so. Hearing Transcript (HT) at 5-6. Nevertheless, the appellant and the agency both elicited hearing testimony about the nuanced allegations described above. For example, the appellant’s representative elicited testimony from the appellant about how the Field Office Director constantly made racist comments about employees who were not Black, described the appellant as not Black enough, and made fun of the appellant’s Haitian accent with another employee. HT at 178-79, 180-81, 185, 1894 (testimony of the appellant). Agency counsel cross-examined the appellant about the same. HT at 216-17 (testimony of the appellant). Both parties also elicited testimony about these and other allegations of discrimination from the Field Office Director, who denied any wrongdoing, including any discrimination based on an individual’s Haitian descent. HT at 29-30, 48-59 (testimony of the Field Office Director). ¶10The parties separately elicited testimony from three other employees who characterized themselves as victims of or witnesses to the Field Office Director’s discrimination and other abuse. To illustrate, one described his time working as a Section Chief for the Field Office Director as the worst experience in his 25 years of service. HT at 122 (testimony of first coworker). Some of the “hostile” behavior he reported including her screaming at employees, calling individuals who were not Black “slave master,” and making other racially divisive comments “all the time.” HT at 123, 126-27. This coworker stated that “everything with [the Field Office Director] is race,” and he agreed to a demotion to get away from the situation. HT at 123-24, 127. ¶11A second coworker of the appellant also testified, describing the Field Office Director’s leadership style as that of a “dictator,” and describing the work environment she created as “toxic.” HT at 143, 145 (testimony of second coworker). This individual similarly testified that he left his job as Section Chief under the Field Office Director for these reasons, while further suggesting that it had negatively impacted his health and well-being. HT at 145-47. He was less certain about whether the Field Office Director’s toxic behavior stemmed from discriminatory animus. HT at 148-49. ¶12Finally, a third coworker of the appellant, who held the position of Supervisory Immigration Services Officer, described the Field Office Director as “hostile.” HT at 160-63 (testimony of third coworker). He indicated that it sometimes appeared as if the Field Office Director’s actions were discriminatory towards White employees. HT at 163-64, 174. This individual described how the5 Field Office Director’s behavior negatively impacted his health and well-being, and he described how the appellant relayed the same about her health and well-being. HT at 165-66. This witness, like the others, described the situation as contributing to his leaving the job. HT at 166-67. ¶13In the initial decision, the administrative judge stated that the appellant had not alleged that the Field Office Director exhibited discriminatory behavior towards employees of Haitian descent or the existence of a hostile work environment based on national origin. ID at 15 n.4. We disagree. While most of the allegations and testimony seemed to implicate race or color, some implicated the appellant’s national origin, as described above. ¶14The Board has identified several nonexhaustive factors to consider when determining whether an administrative judge erred in not addressing an appellant’s affirmative defenses such that remand is necessary. Among the relevant factors are: (1) the thoroughness and clarity with which the appellant raised an affirmative defense; (2) the degree to which the appellant continued to pursue the affirmative defense in the proceedings below after initially raising it; (3) whether the appellant objected to a summary of the issues to be decided that failed to include the potential affirmative defense when specifically afforded an opportunity to object and the consequences of the failure were made clear; (4) whether the appellant raised the affirmative defense or the administrative judge’s processing of the affirmative defense claim in the petition for review; (5) whether the appellant was represented during the course of the appeal before the administrative judge and on petition for review, and if not, the level of knowledge of Board proceedings possessed by the appellant; and (6) the likelihood that the presumptive abandonment of the affirmative defense was the product of confusion, or misleading or incorrect information provided by the agency or the Board. Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶ 18. ¶15Most of these factors tend to support the conclusion that remand is required in this case. The only ones that could weigh otherwise are the third and fifth6 factors, because the appellant was represented by an attorney and did not object to the prehearing summary identifying race discrimination as the only type of discrimination alleged. However, consistent with the sixth factor, it seems quite likely that the failure to object to the prehearing conference summary was nothing more than the product of confusion. In many contexts, there is a blurring of the lines between some forms of discrimination, and that appears to be the case here. See generally Salas v. Wisconsin Department of Corrections , 493 F.3d 913, 923 (7th Cir. 2007) (recognizing that “[i]n the federal courts, there is uncertainty about what constitutes race versus national origin discrimination under Title VII,” and finding that an individual who identifies himself as Hispanic without describing a national origin could nevertheless pursue a claim of discrimination based on national origin); Deravin v. Kerik , 335 F.3d 195, 202 (2d Cir. 2003) (finding that “racial categories may overlap significantly with nationality or ethnicity,” such that “the line between discrimination on account of race and discrimination on account of national origin may be so thin as to be indiscernible”) (internal quotes omitted); Complainant v. Brennan , Equal Employment Opportunity Commission (EEOC) Appeal No. 0120151208, 2015 WL 3955326, at 1 & n.1 (June 19, 2015) (recognizing that a complainant alleged discrimination based on “race (Mexican)” and indicating that, “[w]hile the EEOC views Mexican to constitute a national origin and not a race, [the EEOC would] accept the definition as provided by [c]omplainant”); EEOC Enforcement Guidance on National Origin Discrimination, EEOC Notice No. 915.005, § II.C.1 (Nov. 18, 2016), https://www.eeoc.gov/laws/guidance/eeoc-enforcement- guidance-national-origin-discrimination (“National origin discrimination often overlaps with race, color, or religious discrimination because a national origin group may be associated or perceived to be associated with a particular religion or race.”); EEOC Compliance Manual, § 2-II.A.1.b, 2009 WL 2966754 (Aug. 6, 2009) (“National origin discrimination includes discrimination based on place of origin or on the physical, cultural, or linguistic characteristics of a national origin7 group. Sometimes, national origin discrimination overlaps with race discrimination, and in such cases, the basis of discrimination can be categorized as both race and national origin.”). ¶16Once again, the appellant unambiguously described herself as Haitian, and she described the Field Office Director as an African American who had, inter alia, made fun of the appellant’s Haitian accent. She also described the Field Office Director as hating “Caucasians, Asians, Hispanics, and ever[y] other [B]lack employee[] who [was] not of African descent.” IAF, Tab 46 at 5. In the absence of an explicit abandonment of these and other similar allegations, it is understandable that the appellant and her attorney did not recognize the administrative judge’s prehearing summary as omitting any of these claims. One can easily understand how the prehearing summary’s reference to “race discrimination” might have been interpreted as shorthand for the appellant’s more detailed allegations that implicated race, color, ethnicity, and national origin. Plus, the initial decision seems to suggest that the administrative judge simply overlooked some of those allegations, rather than purposefully deciding that they were abandoned. ID at 15 n.4. ¶17Looking beyond any distinction between race, color, ethnicity, and national origin, there are other reasons why the appellant’s discrimination claim requires remand. Within the initial decision, the administrative judge did not make credibility findings about the conflicting hearing testimony3 and whether the discriminatory behavior alleged throughout this appeal occurred. ID at 14-15. The administrative judge stated that any racially based hostile work environment 3 In addition to hearing testimony, the record includes other evidence about the issue. For example, the Field Office Director sat for a deposition in which she indicated that she believed the appellant was born in Haiti, but denied that she had any problem with that and denied that she told the appellant that the appellant was not Black enough. IAF, Tab 48 at 176-77. On the other hand, a sworn written statement from one of the testifying witnesses describes how the Field Office Director routinely engaged in erratic bullying behavior, much of which was explicitly tied to individuals’ race or heritage, all of which led to him agreeing to a demotion to leave the office after more than 20 years of service. IAF, Tab 46 at 13-16.8 created by the Field Office Director was not directed at the appellant or other Black employees, and that the appellant did not maintain otherwise during her hearing testimony. ID at 15. But, as alluded to previously, the hearing transcript reflects otherwise. Among other things, the appellant testified that the Field Office Director described the appellant as “not Black enough” because the appellant would not help her harass a White peer. HT at 185 (testimony of the appellant). Thus, the appellant did allege that she was subject to discriminatory behavior, and it is necessary to make credibility findings about the same. The administrative judge is in the best position to make those credibility findings. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 27 (2015). ¶18While denying the appellant’s discrimination affirmative defense, the administrative judge also cited another rationale with which we disagree. He concluded that the Field Office Director gave uncontroverted testimony that she was not involved in proposing or effecting the appellant’s removal. ID at 15. However, the Field Office Director was the appellant’s direct supervisor. She was the supervisor who gave the instructions that the appellant failed to follow, the individual who referred the appellant’s misconduct to others for investigation, and a witness for purposes of the associated investigation that led to the appellant’s removal. IAF, Tab 8 at 5, Tab 48 at 174-75. Although the administrative judge should have considered this, he did not. See Naval Station Norfolk-Hearing 2 v. Department of the Navy , 123 M.S.P.R. 144, ¶ 30 (2016) (recognizing that an individual’s role in the decision-making process that leads to an adverse action cannot be ignored in considering a claim of discrimination). For all these reasons, we must remand the appellant’s discrimination claim for further adjudication. On remand, the administrative judge should address whether, among other methods like direct evidence, this case involves a “convincing mosaic” of circumstantial evidence of discrimination consisting of “suspicious timing, ambiguous statements oral or written, behavior toward or comments directed at other employees in the protected group, and other bits and9 pieces from which an inference of discriminatory intent might be drawn.” Wilson v. Small Business Administration , 2024 MSPB 3, ¶ 12. The administrative judge must further adjudicate the appellant’s EEO reprisal claim. ¶19In her petition for review, the appellant also presents arguments about her EEO reprisal claim. PFR File, Tab 3 at 14-19. As recognized in the initial decision, this claim primarily concerned the appellant’s own EEO complaints about her supervisor, i.e., the Field Office Director, along with the appellant’s alleged support for a peer who had previously complained about the Field Office Director. ID at 16; IAF, Tab 46 at 6, 13-16. The administrative judge found that the deciding official in the appellant’s removal was aware of the appellant’s participation in her peer’s complaint, but that the deciding official testified that she was unaware of the appellant’s own more recent complaint. ID at 17. He further found that even if she was aware, this knowledge was insufficient to prove by preponderant evidence that the appellant’s prior protected EEO activity was a motivating factor in the appellant’s removal. Id. ¶20The appellant argues on review that this conclusion should be vacated for two reasons. First, she argues that there was reason to question the deciding official’s credibility because the deciding official provided conflicting testimony about whether she had ever received complaints about the Field Office Director’s harassment, yet the administrative judge made no credibility findings regarding her testimony. PFR File, Tab 3 at 14-18 (referencing HT at 92-98 (testimony of the deciding official)). Second, the appellant correctly notes that the administrative judge improperly focused all of his attention on the deciding official, without considering the degree to which the appellant’s supervisor, i.e., the Field Office Director who was implicated by the EEO activity, influenced the removal action. Id. ¶21We agree that these allegations require further adjudication. As already discussed, the administrative judge suggested that the Field Office Director, who10 was at the center of the alleged discrimination and resulting EEO activity, played no role in the appellant’s removal. ID at 15. But that individual played a significant role in the matter. IAF, Tab 8 at 5, Tab 48 at 174-75. Thus, the administrative judge must reconsider the appellant’s EEO reprisal claim in this light, making credibility determinations as needed to determine whether the appellant engaged in protected EEO activity that was a motivating factor in or a but for cause of the appellant’s removal. After further adjudicating the appellant’s affirmative defenses, the administrative judge must reconsider the reasonableness of the agency’s penalty. ¶22Regarding the reasonableness of the agency’s chosen penalty, the appellant once again refers to the discrimination and reprisal she has alleged throughout this appeal. PFR File, Tab 3 at 19-21. The appellant argues that the circumstances caused extreme stress, such that she was on the verge of a nervous breakdown when she engaged in the misconduct underlying her appeal. Id. at 19. And, as alluded to previously, the appellant has asserted that almost all of her misconduct was done to secure documentation to protect against the discipline she anticipated by the Field Office Director. IAF, Tab 6 at 6-9, 14-21; HT at 199-205 (testimony of the appellant). According to the appellant, the administrative judge’s failure to decide whether the Field Office Director engaged in the types of behavior alleged by the appellant and others prevented the administrative judge from adequately analyzing the penalty. PFR File, Tab 3 at 20-21. In other words, the appellant suggests that the administrative judge must decide whether and to what degree the appellant’s working situation was dysfunctional before deciding whether the agency’s penalty is reasonable. Under the circumstances, we agree that the administrative judge must consider the nature of the appellant’s workplace in addressing the penalty. ¶23When the agency’s charges have been sustained, the Board will review an agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of11 reasonableness. Chin v. Department of Defense , 2022 MSPB 34, ¶ 24. The Board will modify a penalty only when it finds that the agency failed to weigh the relevant factors or that the penalty the agency imposed clearly exceeded the bounds of reasonableness. Id. However, if the deciding official failed to appropriately consider the relevant factors, the Board need not defer to the agency’s penalty determination. Id. ¶24On remand, the administrative judge should first address the appellant’s discrimination and EEO reprisal claims. If those claims do not require reversal of the appellant’s removal, the administrative judge must reconsider whether the agency has proven the reasonableness of its penalty. Among other things, the administrative judge should decide whether the deciding official appropriately considered mitigating factors identified by the appellant, i.e., the alleged harassment she had endured and her explanation that this was the reason for most of the misconduct underlying her removal.4 See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 332 (1980) (recognizing as relevant to the appropriateness of a penalty mitigating circumstances surrounding the offense, such as unusual job tensions, harassment, or bad faith, malice, or provocation on the part of others involved in the matter). The appellant has not established that the administrative judge exhibited bias that requires reassignment of this appeal. ¶25The appellant’s final arguments on review are that the administrative judge exhibited bias in favor of the agency throughout this appeal. PFR File, Tab 3 at 21-27. She therefore asks that the Board remand this appeal to a different administrative judge. Id. at 28. ¶26In making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies 4 The deciding official indicated that she could not conclude that the Field Office Director had engaged in harassment or created a hostile work environment, as alleged by the appellant, but that she nevertheless considered the appellant’s assertions of workplace tensions as a mitigating factor. IAF, Tab 5 at 18. 12 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) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). While we have carefully considered the appellant’s allegations of bias, we are not persuaded by this contention. The appellant has correctly identified some errors in the initial decision, for which we are remanding this appeal. But she has not shown that we must remand the appeal to a different administrative judge. ORDER ¶27For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. The appellant’s discrimination allegations involved race, color, ethnicity, and national origin, and she presented evidence about the same, all of which the administrative judge did not fully address. On remand, the administrative judge must consider all of these allegations in concert with the applicable legal standards. See Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 20-25, 30-33 (setting forth the legal standard and analytical framework for claims of Title VII discrimination); see also Burlington Industries, Inc. v. Ellerth , 524 U.S. 742, 754 (1998) (finding that a hostile work environment under Title VII requires a showing of severe or pervasive conduct); Wilson, 2024 MSPB 3, ¶¶ 11-19 (setting forth the ways in which an appellant can meet the motivating factor and but for causation standards that apply to Title VII discrimination claims). ¶28On remand, the administrative judge must also consider the degree to which the Field Office Director played a role in the appellant’s removal. He must do so for purposes of the appellant’s discrimination claim, as well as her EEO reprisal13 claim. See Pridgen, 2022 MSPB 31, ¶ 30 (recognizing that claims of retaliation for opposing discrimination in violation of Title VII are analyzed under the same framework used for Title VII discrimination claims). ¶29Finally, the administrative judge must reconsider the agency’s choice of penalty. He should pay particular attention to the appellant’s allegations of extensive improprieties throughout her office and the reasons given for her misconduct, which she describes as interrelated, along with the deciding official’s consideration of those circumstances. ¶30The administrative judge should inform the parties of the applicable legal standards regarding the affirmative defenses and the penalty, and he should provide the parties with an opportunity to submit associated arguments. If he deems it necessary, the administrative judge may also hold a supplemental hearing. The administrative judge must then issue a remand initial decision that addresses each of these issues and resolves any questions of credibility. He may incorporate his prior findings about the charges, which the appellant has not disputed on review, if appropriate.5 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 5 If the evidence or argument on remand affects the administrative judge’s analysis of the merits of the agency’s case, he should address that evidence or argument 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).14	Lamour_NatachaAT-0752-23-0067-I-1_Remand_Order.pdf	2024-08-26	NATACHA LAMOUR v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. AT-0752-23-0067-I-1, August 26, 2024	AT-0752-23-0067-I-1	NP
628	https://www.mspb.gov/decisions/nonprecedential/Krensis_Leslie_A_CH-1221-23-0339-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LESLIE A. KRENSIS, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER CH-1221-23-0339-W-1 DATE: August 26, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Leslie A. Krensis , Spring Grove, Illinois, pro se. Daniel S. Lacy , North Chicago, Illinois, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action appeal as untimely filed. On petition for review, the appellant argues that she had to assist her husband with his medical appointments while he was incapacitated, and she believed that she had more than 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). 60 days to file an 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 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Krensis_Leslie_A_CH-1221-23-0339-W-1_Final_Order.pdf	2024-08-26	LESLIE A. KRENSIS v. DEPARTMENT OF THE ARMY, MSPB Docket No. CH-1221-23-0339-W-1, August 26, 2024	CH-1221-23-0339-W-1	NP
629	https://www.mspb.gov/decisions/nonprecedential/Strong_Kristin_A_CH-0752-19-0188-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KRISTIN A. STRONG, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Agency.DOCKET NUMBER CH-0752-19-0188-I-2 DATE: August 26, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 A. Brian Henson , Esquire, and Frank DeMelfi , Esquire, Decatur, Georgia, for the appellant. William M. Edwards , Esquire, Kansas City, Missouri, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained her demotion to a nonmanagerial position at a different duty location and subsequent removal. On petition for review, the appellant argues that she did not engage in the conduct charged by the agency in the demotion action and that 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 penalty of removal was unreasonable, and she reasserts her affirmative defense of reprisal for filing equal employment opportunity (EEO) complaints. Petition for Review, Tab 1 at 6-17. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to supplement the administrative judge’s discussion of the penalty of a demotion to a nonmanagerial position at a different duty location and to include the appropriate standard of causation for the appellant’s EEO reprisal claim, we AFFIRM the initial decision. The administrative judge correctly found that the agency proved the charges of inappropriate conduct and refusal to accept a directed assignment by preponderant evidence, and that the appellant’s demotion to a nonmanagerial position at a different duty location and subsequent removal promoted the efficiency of the service and were reasonable. Strong v. Federal Deposit Insurance, MSPB Docket No. CH-0752-19-0188-I-2 Appeal File (AF), Tab 51, Initial Decision (ID) at 11-23. In analyzing the refusal to accept a directed assignment charge, although the administrative judge did not cite to our reviewing court’s decision in Cobert v. Miller, 800 F.3d 1340 (Fed. Cir. 2015), which requires that the Board apply the two-step burden shifting approach2 because it is the “law of the circuit,” id. at 1349, he nonetheless applied the correct legal framework as similarly set forth by the Board in Umshler v. Department of the Interior , 44 M.S.P.R. 628, 630 (1990), ID at 20-21. Although the appellant has submitted what appears to be a substantive petition for review, upon closer examination, the arguments in her petition for review are nearly identical to arguments made below before the administrative judge in her close of record brief. PFR File, Tab 1 at 6-17; AF, Tab 47 at 6-15. The Board has held that incorporating arguments made in a submission before the administrative judge fails to meet the Board’s criteria for review because such a pleading “does not explain how or why the [administrative judge] erred.” See Mulroy v. Office of Personnel Management , 92 M.S.P.R. 404, ¶ 15 (2002), overruled on other grounds by Clark v. Office of Personnel Management , 120 M.S.P.R. 440, ¶ 12 (2013); see also Jackson v. Department of the Army , 99 M.S.P.R. 604, ¶ 9 (2005) (finding that the standard for granting review was not met when the appellants disputed the administrative judge’s factual findings by referencing their closing argument submitted below). Nonetheless, we modify the initial decision in two regards. Regarding the penalty of demotion to a nonmanagerial position and subsequent reassignment to a different duty location, which was imposed as a result of a sustained inappropriate conduct charge, we find that, although not raised by either party, such a penalty constitutes a unitary penalty under Brewer v. American Battle Monuments Commission , 779 F.2d 663 (Fed. Cir. 1985). In Brewer, our reviewing court held that a reduction in grade and subsequent reassignment to another duty location, which resulted from the same misconduct and corresponding disciplinary action, constitute a unitary penalty, and that the Board must review the entire agency action to determine whether it is reasonable in light of the sustained misconduct. 779 F.2d at 664-65. Here, although the decision letter for the demotion did not directly reassign the appellant to a specific new position, it referenced a forthcoming letter that was issued the same day detailing3 the reassignment. AF, Tab 6 at 12-13, Tab 30 at 5-7. Moreover, the appellant’s position description indicated that she could be reassigned or relocated to any geographical location where her services were needed as determined by management. AF, Tab 5 at 77, 83. Further, the proposing official stated in an affidavit that the agency believed that having the appellant remain in the same work unit would be disruptive to the staff, given the circumstances surrounding her demotion, and would put at risk the mission -critical functions of the unit. Id. at 61. Based on the foregoing, we supplement the initial decision to find that the actions taken by the agency here constitute a unitary penalty of a demotion to a nonmanagerial position at a different duty location and that such a penalty was reasonable under the circumstances of this case. We also modify the initial decision to reflect the appropriate standard of causation for the appellant’s EEO reprisal claims. Below, the administrative judge concluded that the appellant failed to provide any evidence, beyond her conjecture, that her demotion and removal “were motivated to any extent by retaliatory or discriminatory animus.” ID at 24. However, in Pridgen v. Office of Management and Budget , 2022 MSPB 36, ¶¶ 46-47, the Board held that, for an appellant to establish a claim of reprisal for EEO activity based on a disability, she must show that her protected activity is a but-for cause of the agency action.. Because the administrative judge correctly concluded that the appellant failed to meet a lower motivating factor standard, we find that she could not have met the higher but-for standard. See Haas v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 31-32 (modifying an initial decision to recognize that the more stringent but-for standard applied because an employee’s EEO reprisal claim arose under the Rehabilitation Act, while affirming the administrative judge’s conclusion that the employee failed to satisfy even the lesser “motivating factor” standard). Accordingly, we affirm the administrative judge’s ultimate conclusion that the appellant did not prove this affirmative defense, but modify the initial decision to include the appropriate standard of causation as reflected here.4 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.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	Strong_Kristin_A_CH-0752-19-0188-I-2_Final_Order.pdf	2024-08-26	KRISTIN A. STRONG v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. CH-0752-19-0188-I-2, August 26, 2024	CH-0752-19-0188-I-2	NP
630	https://www.mspb.gov/decisions/nonprecedential/Simpson_Twanita_L_DC-0432-21-0150-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TWANITA L. SIMPSON, Appellant, v. SMITHSONIAN INSTITUTION, Agency.DOCKET NUMBER DC-0432-21-0150-I-1 DATE: August 26, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Twanita L. Simpson , Upper Marlboro, Maryland, pro se. Mia Haessly and Katherine Bartell , 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 a petition for review of the initial decision, which dismissed her removal appeal pursuant to a negotiated settlement agreement. For the reasons set forth below, the appellant’s petition for review is DISMISSED as 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). untimely filed by 21 months without good cause shown. 5 C.F.R. § 1201.114(e), (g). BACKGROUND ¶2Effective November 21, 2020, the agency removed the appellant from Federal service for unacceptable performance pursuant to 5 U.S.C. chapter 43. Initial Appeal File (IAF), Tab 1 at 13, Tab 6 at 58. The appellant filed a Board appeal challenging her removal. IAF, Tab 1. During the pendency of the appeal before the administrative judge, the parties reached a negotiated settlement agreement, which the agency entered into the record on August 16, 2021. IAF, Tab 24. The administrative judge found that the appeal was within the Board’s jurisdiction and that the settlement agreement was lawful on its face, the parties understood its terms, and they freely and voluntarily entered into it. IAF, Tab 25, Initial Decision (ID) at 1. Accordingly, he dismissed the appeal as settled. ID at 1-2. The initial decision became final on September 24, 2021, when neither party filed a petition for review. ID at 2. ¶3On June 30, 2023, the appellant filed a pleading entitled “Request to Vacate Initial Decision per Settlement Agreement.” Petition for Review (PFR) File, Tab 1 at 1. Therein, she asserts that the agency has not expunged her personnel file or given her a clean record. Id. The Office of the Clerk of the Board (Clerk) contacted the appellant by email to confirm the intent of her pleading. PFR File, Tab 2. According to an acknowledgment letter issued by the Clerk, the appellant confirmed via email on July 6, 2023, that she intended her filing to be processed as a petition for review of the initial decision. Id. at 1. The appellant was notified that her petition for review appeared to be untimely and was given an opportunity to establish good cause for her delayed filing. Id. at 2, 7-8. The appellant then filed a motion to accept her filing as timely or to waive the time limit. PFR File, Tabs 4-5. The agency has filed a response in opposition to the2 appellant’s petition for review and the appellant has filed a reply. PFR File, Tabs 6-7. DISCUSSION OF ARGUMENTS ON REVIEW ¶4To be timely, a petition for review must normally be filed within 35 days of the date of issuance of the initial decision unless good cause is shown for the delay in filing. 5 C.F.R. § 1201.114(e), (g). The initial decision in this case was issued on August 20, 2021, with a finality date of September 24, 2021. ID at 2. Thus, the appellant’s petition for review, filed on June 30, 2023, was untimely filed by more than 21 months. ¶5To establish good cause for an untimely filing, a party must show that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980). In this case, the appellant appears to assert that she has established good cause for her untimely filing because she has new and material evidence establishing that the settlement agreement was invalid due to fraud or mutual mistake. PFR File, Tab 1 at 9, Tab 4 at 2; see Parkin v. Department of Justice , 91 M.S.P.R. 411, ¶ 6 (2002), aff’d, 55 F. App’x 559 (Fed. Cir. 2003) (stating that an appellant may establish good cause for an untimely petition for review if she has new and material evidence establishing that the settlement agreement was invalid). ¶6In relevant part, the settlement agreement, which appears to have been fully executed by the parties on August 16, 2021, provided the following: Within 365 days of execution of this Agreement, the Smithsonian will: (1) expunge Appellant’s SF-50 Removal, from her electronic Official Personnel Folder (“eOPF”) and enter an SF-50 reflecting a voluntary separation for personal reasons effective November 21, 2020; (2) expunge the Performance Improvement Plan (“PIP”) dated July 28, 2020 and any related documents referencing the PIP from her eOPF[;] and (3) expunge Appellant’s 2018, 2019 and 2020 performance appraisals from her eOPF, if all of the following conditions are met:3 a. The Office of Personnel Management (“OPM”) amends 5 CFR § 752.407 and 5 CFR § 432.108 to permit the alteration of official personnel records pursuant to settlement agreements that have already been executed; b. This Agreement is executed within the time frame permitted by OPM to allow an expungement under an amendment to 5 CFR § 752.407 and 5 CFR § 432.108; and c. No other prohibition exists preventing the Smithsonian from taking this action. If the foregoing conditions are not met within 365 days of execution of the Agreement, the removal and other aforementioned items will remain in Appellant’s eOPF. IAF, Tab 24 at 2, 4. ¶7The parties appear to agree that, effective December 12, 2022, approximately 16 months after the settlement agreement was signed, OPM issued a final rule amending 5 C.F.R. § 432.108. PFR File, Tab 4 at 2, Tab 6 at 6. The appellant asserts that, in or around November 2022, she learned that the agency would not expunge her personnel file and give her a clean record because OPM had not amended the relevant rules or regulations within 1 year of the execution of the settlement agreement. PFR File, Tab 1 at 9, Tab 7 at 11. ¶8Based on the terms of the agreement, the appellant could have, or should have, known as early as August 2022 that the agency had not expunged her personnel file or given her a clean record. IAF, Tab 24 at 2, 4. However, even if we were to find that the appellant received new and material information in November 2022, when the agency appears to have rejected her request to expunge her personnel file and give her a clean record, PFR File, Tab 7 at 11, she has not explained why she waited an additional 7 months to file a petition for review. Accordingly, we find that the appellant has failed to establish good cause for her untimely petition for review. See Parkin, 91 M.S.P.R. 411, ¶ 7 (finding that the appellant failed to establish good cause for his untimely petition for review of an initial decision dismissing his appeal as settled when he waited approximately 8 months to file his petition for review after allegedly obtaining new information4 that the settlement agreement was invalid due to mutual mistake); Graves v. Department of Veterans Affairs , 82 M.S.P.R. 38, ¶ 12 (1999) (finding that the appellant failed to establish good cause for his untimely petition for review of an initial decision dismissing his appeal as settled when he waited more than 1 month to file his petition for review after purportedly discovering new evidence regarding his claim of fraud). We therefore dismiss the petition for review as untimely filed. This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision of the Board regarding the dismissal of the appeal as settled. 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.5 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you6 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: 7 Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Simpson_Twanita_L_DC-0432-21-0150-I-1_Final_Order.pdf	2024-08-26	TWANITA L. SIMPSON v. SMITHSONIAN INSTITUTION, MSPB Docket No. DC-0432-21-0150-I-1, August 26, 2024	DC-0432-21-0150-I-1	NP
631	https://www.mspb.gov/decisions/nonprecedential/Knight_Phyllis_M_DE-844E-23-0139-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PHYLLIS M. KNIGHT, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DE-844E-23-0139-I-1 DATE: August 26, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Phyllis M. Knight , Wichita, Kansas, pro se. Lisa R. Haynes , 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 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 retirement under Federal Employees’ Retirement System (FERS) as untimely filed. On petition for 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). review,2 the appellant argues that the administrative judge denied her due process right to discovery and improperly considered a false medical record that OPM received from the Social Security Administration (SSA). She also argues that the administrative judge made incorrect findings of material fact and the case was wrongly decided. 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 In her reply, the appellant points out that the agency representative certified on August 4, 2023, that, on that date, she served the appellant with her response to her petition for review via first class mail. Petition for Review (PFR) File, Tab 4 at 1. The appellant has submitted the envelope containing the agency’s response, noting that, because it bears a postmark of August 8, 2023, the agency representative thereby committed perjury. Id. at 4. The agency’s response appears to have been served on the appellant via mail on August 8, 2023, and via email on August 4, 2023. PFR File, Tab 3 at 9, Tab 4 at 4. However, the appellant has not shown how she was harmed, in that she timely filed her reply to the agency’s response on August 14, 2023, and we have considered it. PFR File, Tab 4 at 8; see 5 C.F.R. § 1201.4( l) (stating the date of filing by mail is determined by the postmark date).2 Therefore, we DENY the petition for review and AFFIRM the initial decision,3 which is now the Board’s final decision. 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. 3 Below, the appellant alleged that her application was timely filed with her employing agency within one year of her separation. Initial Appeal File (IAF), Tab 20 at 11. We supplement the administrative judge’s analysis to clarify that an application for disability retirement under FERS must be filed with an employee’s employing agency before the employee separates from service or with the former employing agency or OPM within 1 year of the employee’s separation. See Bruce v. Office of Personnel Management, 119 M.S.P.R. 617, ¶ 7 (2013). However, we agree with the administrative judge that there is no evidence in the record to support the appellant’s allegation that her application was timely filed with her employing agency. IAF, Tab 21, Initial Decision (ID) at 6. We also agree with the administrative judge that the appellant’s allegation that her application was timely filed with OPM is not persuasive, as the appellant mistakenly conflates her application for social security disability benefits with SSA and her application for disability retirement benefits with OPM. ID at 7. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 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.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	Knight_Phyllis_M_DE-844E-23-0139-I-1_Final_Order.pdf	2024-08-26	PHYLLIS M. KNIGHT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-844E-23-0139-I-1, August 26, 2024	DE-844E-23-0139-I-1	NP
632	https://www.mspb.gov/decisions/nonprecedential/Bennett_RonaldAT-0842-21-0562-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RONALD BENNETT, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-0842-21-0562-I-2 DATE: August 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alan V. Edmunds , Esquire, Samir Nakleh , Esquire, and Christopher Thomas Snowden , Esquire, Ponte Vedra Beach, Florida, for the appellant. Carla Robinson , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision by the Office of Personnel Management (OPM) regarding the recalculation of the appellant’s disability retirement annuity 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). upon reaching age 62. On petition for review,2 the appellant asserts that the administrative judge misconstrued the evidence and mischaracterized his claim. He argues that OPM erred in calculating his cost-of-living adjustments, in not crediting his unused sick leave toward his service time, and in excluding his “shift rates” in calculating the high-3 average salary. 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 With his petition for review, the appellant attached his August 2023 affidavit and his July 2023 emails with the administrative judge regarding his objection to the administrative judge’s ruling that he could not question OPM. Petition for Review File, Tab 2 at 14-16, 18. 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 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). The appellant has not made such a showing. In any event, the appellant’s documents are not of sufficient weight to warrant an outcome different from that of the initial decision. See Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980). During the hearing, the administrative judge noted the appellant’s objection for the record and affirmed his earlier ruling denying the appellant’s request to cross-examine OPM’s representative. Hearing Transcript (HT) at 4-5. He reasoned that OPM’s representative was not a relevant or material witness, HT at 5, and we discern no abuse of discretion in that regard. Further, OPM did not present any witness testimony at the hearing; therefore, there were no witnesses for the appellant to cross -examine. 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	Bennett_RonaldAT-0842-21-0562-I-2_Final_Order.pdf	2024-08-23	RONALD BENNETT v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0842-21-0562-I-2, August 23, 2024	AT-0842-21-0562-I-2	NP
633	https://www.mspb.gov/decisions/nonprecedential/De_Jesus_Noel_A_NY-844E-23-0089-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NOEL ANTONIO DE JESUS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER NY-844E-23-0089-I-1 DATE: August 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Noel Antonio De Jesus , Rio Grande, Puerto Rico, pro se. Keyanta Dandridge and Eva Ukkola , 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 failure to prosecute. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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.2 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their 2 The appellant contends that he appeared for the hearing on the scheduled date, but that the administrative judge was not present and that the administrative judge was biased against him. Petition for Review File, Tab 1. The record shows, however, that the administrative judge cancelled the hearing because of the appellant’s repeated failures to comply with prior orders, including his failure to attend a status conference and prehearing conference and to file a prehearing submission. Initial Appeal File, Tabs 11- 12. We discern nothing improper in the administrative judge’s actions. Regarding the appellant’s bias claim, an administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if the administrative judge’s comments or actions evidence “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). The appellant has not shown that the administrative judge demonstrated bias. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The3 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file4 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 7	De_Jesus_Noel_A_NY-844E-23-0089-I-1_Final_Order.pdf	2024-08-23	NOEL ANTONIO DE JESUS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-844E-23-0089-I-1, August 23, 2024	NY-844E-23-0089-I-1	NP
634	https://www.mspb.gov/decisions/nonprecedential/Doe_JohnNY-844E-23-0073-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN DOE, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER NY-844E-23-0073-I-1 DATE: August 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 John Doe , Teaneck, New Jersey, pro se. James Mercier , 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 based on the rescission of the reconsideration decision issued by the Office of Personnel Management (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). On petition for review, the appellant argues that OPM did not rescind its decision, that he did not receive benefits or communication from OPM, and that OPM’s stated intention of granting the appellant disability retirement benefits was inaccurate. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). As found by the administrative judge, OPM rescinded its reconsideration decision and indicated its intent to award the appellant the requested disability retirement benefits. Initial Appeal File, Tab 8 at 4, Tab 9 at 4; Tab 10, Initial Decision at 2. If appellant is dissatisfied with any subsequent OPM final decision regarding his disability retirement benefits, he may file a new appeal with the field office consistent with the Board’s regulations. 5 U.S.C. § 8461(e)(1); 5 C.F.R. § 841.308.2 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). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on4 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Doe_JohnNY-844E-23-0073-I-1_Final_Order.pdf	2024-08-23	JOHN DOE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-844E-23-0073-I-1, August 23, 2024	NY-844E-23-0073-I-1	NP
635	https://www.mspb.gov/decisions/nonprecedential/Atterole_NicolePH-0714-23-0184-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NICOLE ATTEROLE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER PH-0714-23-0184-I-1 DATE: August 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Xiaoya Zhu , Esquire, and Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant. Christian K. Piatt , Esquire, Baltimore, Maryland, for the agency. Timothy 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. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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 her removal from service. On petition for review, the appellant argues that the policies underlying her failure to follow policies charge were unclear, so her failure to follow policies should not be considered misconduct. Petition for Review File, Tab 2 at 5-7. She also argues that, despite the agency’s lack of candor charge, which stemmed from her testimony before agency investigators, she provided complete and truthful answers. Id. at 7-8. Finally, the appellant argues that the removal action was the product of discrimination or reprisal for engaging in equal employment opportunity activity. Id. at 8-12. 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	Atterole_NicolePH-0714-23-0184-I-1_Final_Order.pdf	2024-08-23	NICOLE ATTEROLE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0714-23-0184-I-1, August 23, 2024	PH-0714-23-0184-I-1	NP
636	https://www.mspb.gov/decisions/nonprecedential/Oguntade_BabatundeDC-1221-23-0169-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BABATUNDE OGUNTADE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DC-1221-23-0169-W-1 DATE: August 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Babatunde Oguntade , Round Rock, Texas, pro se. Shelly S. Glenn , Baltimore, Maryland, for the agency. Matthew Kelly , 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 the appellant’s individual right of action appeal for lack of jurisdiction. On petition for review, the appellant argues that the administrative judge made 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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 factual findings and argues the merits of the agency terminating his detail assignment. 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	Oguntade_BabatundeDC-1221-23-0169-W-1_Final_Order.pdf	2024-08-23	BABATUNDE OGUNTADE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-1221-23-0169-W-1, August 23, 2024	DC-1221-23-0169-W-1	NP
637	https://www.mspb.gov/decisions/nonprecedential/Young_DarinCH-1221-23-0180-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DARIN YOUNG, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-1221-23-0180-W-1 DATE: August 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Darin Young , Fairborn, Ohio, pro se. Amber Groghan , Akron, Ohio, 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 his appeal as withdrawn. 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). BACKGROUND ¶2The appellant was employed as a Housekeeping Aid Supervisor at the agency’s Dayton, Ohio VA Medical Center. Initial Appeal File (IAF), Tab 1 at 7, 16, Tab 6 at 4. On February 9, 2023, the appellant filed this individual right of action (IRA) appeal, alleging that the agency took several personnel actions against him in reprisal for his protected whistleblower activity. IAF, Tab 1 at 3-5. ¶3The administrative judge issued jurisdictional orders in which he apprised the appellant of the applicable law and burden of proof requirements for an IRA appeal and ordered him to submit evidence and argument establishing Board jurisdiction, IAF, Tabs 3, 12, to which the appellant responded, IAF, Tabs 6-7, 16. Shortly thereafter, the agency filed a motion for sanctions or in the alternative to compel, citing the appellant’s “refusal to participate in the discovery process.” IAF, Tab 17. Although the appellant opposed the motion, IAF, Tab 19, the administrative judge granted it in part and ordered him to respond to the agency’s written discovery requests by April 28, 2023, and to sit for any re-noticed deposition. IAF, Tab 20.2 ¶4On April 28, 2023, the appellant filed a pleading titled “Request to Withdraw” through the Board’s e-Appeal Online system, which stated, “This is my request to withdraw this appeal.” IAF, Tab 21. Thereafter, the administrative judge issued a notice of intent to dismiss the appeal, advising the appellant that withdrawing his appeal is an act of finality, and instructing the appellant to notify him by May 4, 2023, if he wished to pursue his appeal. IAF, Tab 22. The appellant did not respond. Therefore, on May 5, 2023, the administrative judge issued an initial decision dismissing the appeal as withdrawn, concluding that the appellant’s request was “clear, unequivocal, and decisive.” IAF, Tab 23, Initial Decision. ¶5The appellant timely filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed an opposition to the petition for review. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW ¶6On review, the appellant does not challenge the administrative judge’s decision to grant his request to withdraw or otherwise argue that his request was in error. PFR File, Tab 1 at 4-7. Instead, he appears to challenge the administrative judge’s discovery rulings that predated his withdrawal request. Id. ¶7When an appellant directly petitions the full Board for review of an initial decision dismissing an appeal as withdrawn, the Board will treat the petition as a request to reopen his appeal. Lincoln v. U.S. Postal Service , 113 M.S.P.R. 486, ¶¶ 9-13 (2010). An appellant’s withdrawal of an appeal is an act of finality that removes the appeal from the Board’s jurisdiction. Id., ¶ 7. A voluntary withdrawal, however, must be clear, decisive, and unequivocal. Id. Here, the record reflects, and the appellant does not dispute, that he unequivocally expressed his intent to withdraw the appeal when he submitted a pleading through the e-Appeal Online system informing the administrative judge that he wished to withdraw his appeal. IAF, Tab 21 at 3.3 ¶8Absent unusual circumstances, such as misinformation or new and material evidence, the Board will not reinstate an appeal once it has been withdrawn. Lincoln, 113 M.S.P.R. 486, ¶ 9. However, the Board may relieve an appellant of the consequences of his decision to withdraw an appeal when the decision was based on misleading or incorrect information provided by the Board or the agency. Potter v. Department of Veterans Affairs , 116 M.S.P.R. 256, ¶ 7 (2011). The appellant has not alleged, nor do we find, that he relied upon misleading or incorrect information provided by the Board or the agency in deciding to withdraw his appeal. Cf. id., ¶¶ 10-15 (excusing the appellant from the consequences of his decision to withdraw his appeal based on misinformation provided by the administrative judge regarding the scope of applicable Board remedies). ¶9Accordingly, we find that the appellant has not established any basis for reinstating his appeal, and we affirm the initial decision. NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most 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.4 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.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. 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	Young_DarinCH-1221-23-0180-W-1_Final_Order.pdf	2024-08-23	DARIN YOUNG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-23-0180-W-1, August 23, 2024	CH-1221-23-0180-W-1	NP
638	https://www.mspb.gov/decisions/nonprecedential/Young_DarinCH-3330-23-0258-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DARIN YOUNG, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-3330-23-0258-I-1 DATE: August 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Darin Young , Fairborn, Ohio, pro se. Amber Groghan , Akron, Ohio, 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 his Veterans Employment Opportunities Act of 1998 (VEOA) appeal for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review and AFFIRM the initial decision AS MODIFIED. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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 MODIFY the initial decision to find that the Board has jurisdiction over the appeal and DISMISS the appeal for failure to state a claim upon which relief can be granted. BACKGROUND ¶2On March 30, 2023, the appellant filed an initial appeal alleging, without explanation, that he is a preference eligible with more than 11 years of Federal service and that the agency violated his veterans’ preference rights. Initial Appeal File (IAF), Tab 1 at 1, 3, 5. He subsequently submitted a letter from the Department of Labor (DOL) dated March 15, 2023, advising him that DOL had investigated his veterans’ preference complaint filed under VEOA and found that he did “not meet the eligibility requirements” and that it had closed its file on the matter. IAF, Tab 2. The letter provided the appellant with Board appeal rights, and he filed the instant appeal. Id.; IAF, Tab 1. ¶3The administrative judge thereafter issued an order informing the appellant that there was a question as to whether his appeal was within the Board’s jurisdiction, providing him with the requirements to establish Board jurisdiction under VEOA, and directing him to file evidence and argument on that issue. IAF, Tab 4. The appellant responded, explaining that he believed the agency violated his veterans’ preference rights under “5 U.S.C. 2108, VA Handbook 5005/49, VA Handbook on erroneous appointments, 38 U.S.C.101(10), Public Law 109-163, Public Law 105-339, etc.” when he was removed from his job as a Housekeeping Aid Supervisor with the agency on December 14, 2022.2 IAF, Tab 7 at 4-5. The appellant also alleged that the agency was “not lawful in the hiring of non-preference eligible employees that are not veterans to restricted housekeeping aid positions” and, as such, these are “erroneous appointments.” Id. at 4. 2 The appellant explicitly noted that he was “not pursuing a claim for the same violation under any other law, rule, or regulation.” IAF, Tab 7 at 5.2 ¶4Without holding the requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, finding that the appellant did not make nonfrivolous allegations of Board jurisdiction.3 IAF, Tab 11, Initial Decision (ID) at 1, 5. The administrative judge found that the appellant’s “unadorned claim” that the agency violated his veterans’ preference rights when it removed him from Federal service failed to state a claim under VEOA. ID at 4. The administrative judge also concluded that the Board lacked jurisdiction over the appellant’s claim that the agency has hired individuals who did not have veterans’ preference because the appellant did not cite any authority requiring the agency to hire only preference eligibles and because Board appeal rights only extend to individuals alleging a violation of preference rights with respect to themselves. ID at 4-5. ¶5The appellant has filed a petition for review, arguing that the administrative judge erred in finding that he did not nonfrivolously allege Board jurisdiction over his appeal and clarifying that he did not allege that the agency was required to hire only preference eligibles and that he did not file an appeal on behalf of any other person, group, or organization. Petition for Review (PFR) File, Tab 1. The agency filed a response.4 PFR File, Tab 3. 3 After the appellant’s response to the administrative judge’s jurisdictional order discussed above, the administrative judge issued a supplemental jurisdictional order providing the appellant with the applicable standards for claims under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) out of an abundance of caution, and instructed him to make a nonfrivolous allegation of Board jurisdiction if he wished to pursue a claim under USERRA. IAF, Tab 10. The appellant did not respond. 4 The appellant has filed a petition for review in a separate individual right of action (IRA) appeal before the Board. Young v. Department of Veterans Affairs , MSPB Docket No. CH-1221-23-0180-W-1, Petition for Review File, Tab 1. Although the agency filed a response to the appellant’s petition for review in this case, the content of its response concerns the appellant’s IRA appeal. PFR File, Tab 3. 3 DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge erred in dismissing the appeal for lack of jurisdiction. ¶6The Board has jurisdiction over two types of VEOA claims: (1) the denial of a right to compete; and (2) the violation of a statute or regulation relating to veterans’ preference. See 5 U.S.C. § 3330a(a)(1)(A) (veterans’ preference claims); 5 U.S.C. §§ 3330a(a)(1)(B), 3304(f)(1) (“right-to-compete” claims); see generally Piirainen v. Department of the Army , 122 M.S.P.R. 194, ¶ 8 (2015). Here, the appellant alleged a violation of a statute or regulation relating to veterans’ preference. IAF, Tab 1 at 3, Tab 7 at 5. As the administrative judge correctly explained, to establish Board jurisdiction over a veterans’ preference VEOA claim, an appellant must: (1) show that he exhausted his remedy with DOL; and (2) make nonfrivolous allegations that (i) he is preference eligible within the meaning of VEOA; (ii) the action at issue took place on or after the October 30, 1998 enactment date of VEOA; and (iii) the agency violated his rights under a statute or regulation relating to veterans’ preference. ID at 3; see Miller v. Federal Deposit Insurance Corporation , 121 M.S.P.R. 88, ¶ 6 (2014), aff’d, 818 F.3d 1361 (Fed. Cir. 2016). An appellant need not state a claim upon which relief can be granted for the Board to have jurisdiction over a VEOA claim. Haasz v. Department of Veterans Affairs , 108 M.S.P.R. 349, ¶ 6 (2008). ¶7In this case, the administrative judge did not make explicit findings as to each of the above jurisdictional requirements. ID at 2-4. It appears undisputed, however, and the record reflects, that the appellant showed that he exhausted his remedy with DOL and that he nonfrivolously alleged that the action at issue here, his removal, took place after October 30, 1998. ID at 2-5; IAF, Tab 7 at 4, 6, Tab 9 at 7-8, 11. We also find that the appellant nonfrivolously alleged that he is a preference eligible within the meaning of VEOA because he declared under penalty of perjury in his jurisdictional response that he is “a preference eligible veteran with [3] years of active-duty service in the United States Army” and that the agency has “noted [his] veterans’ preference in block 24 of [his] [Standard4 Form-50].” IAF, Tab 7 at 3, 5; see also 5 U.S.C. § 2108(1)-(3) (defining veteran, disabled veteran, and preference eligible); Clark v. U.S. Postal Service , 118 M.S.P.R. 527, ¶ 7 (2012) (defining preference eligible veteran); Badana v. Department of the Air Force , 104 M.S.P.R. 182, ¶ 10 (2006) (noting that an appellant need not prove that he is a preference eligible to establish Board jurisdiction over a VEOA claim and finding that a Department of Veterans Affairs disability rating constituted a nonfrivolous allegation that an appellant was entitled to veterans’ preference); 5 C.F.R. § 1201.4(s) (defining nonfrivolous allegation). ¶8Regarding the final jurisdictional requirement, the administrative judge found it unmet because the “appellant’s contention that his preference rights were violated when he was [removed] from employment does not, without more, plausibly state a claim under the VEOA.” ID at 4. We disagree. As the appellant points out in his petition for review, he specifically stated in his jurisdictional response that he believes that the agency violated his veterans’ preference rights under “5 U.S.C. 2108, VA Handbook 5005/49, VA Handbook on erroneous appointments, 38 U.S.C.101(10), Public Law 109-163, Public Law 105-339, etc.” IAF, Tab 7 at 5; PFR File, Tab 1 at 5. The Board has held that, at the jurisdictional stage, an appellant’s claim that the agency violated his veterans’ preference rights should be liberally construed. Elliott v. Department of the Air Force, 102 M.S.P.R. 364, ¶ 8 (2006); Young v. Federal Mediation and Conciliation Service , 93 M.S.P.R. 99, ¶¶ 6-7 (2002) (citing the legislative history of VEOA for the proposition that it was intended to be a “user-friendly, yet effective” redress mechanism for the violation of veterans’ preference rights), aff’d, 66 F. App’x 858 (Fed. Cir. 2003). Pro se petitioners are not expected to frame issues with the precision of a common law pleading, and the Board has even held that an appellant’s allegation, in general terms, that his veterans’ preference rights were violated is sufficient to meet the nonfrivolous allegation standard. Elliott, 102 M.S.P.R. 364, ¶ 8; see Haasz, 108 M.S.P.R. 349, ¶ 75 (finding that the appellant’s allegation that the agency violated an unspecified law relating to veterans’ preference was sufficient to meet the nonfrivolous allegation requirement). As a result, we disagree with the administrative judge’s conclusion on this point and modify the initial decision to find that the appellant nonfrivolously alleged that the agency violated his rights under a statute or regulation relating to veterans’ preference. Furthermore, because the appellant also established the other jurisdictional requirements, we modify the initial decision to find that the appellant established Board jurisdiction over his appeal.5 Although the Board has jurisdiction over the appeal, it must be dismissed for failure to state a claim upon which relief can be granted. ¶9We nevertheless dismiss the appellant’s request for corrective action because he has failed to state a claim upon which relief can be granted. An appeal that is within the Board’s jurisdiction can be dismissed for failure to state a claim upon which relief can be granted if the appellant cannot obtain effective relief before the Board even if his allegations are accepted as true. Alford v. Department of Defense , 113 M.S.P.R. 263, ¶ 11 (2010), aff’d, 407 F. App’x 458 (Fed. Cir. 2011). In appraising the sufficiency of an appeal, the Board will not dismiss an action for failure to state a claim unless it appears beyond doubt that the appellant can prove no set of facts in support of his claim that would entitle him to relief. Id. Dismissal for failure to state a claim is appropriate only if, taking the appellant’s allegations as true and drawing all reasonable inferences in his favor, he cannot prevail as a matter of law. Id. ¶10Below, the administrative judge placed the appellant on notice of his burden to show a genuine dispute of material fact in order to receive a hearing. The administrative judge stated in the jurisdictional order that, “[i]f the appellant 5 Although the appellant explains in his petition for review that he did not intend to argue that the agency was required to hire only preference eligibles and clarifies that he did not file his appeal on behalf of any other person, we agree with and find no reason to disturb the administrative judge’s finding that the Board lacks jurisdiction over such a claim. PFR File, Tab 1 at 7-8; IAF, Tab 7 at 4; ID at 4-5. 6 meets the burden of proving jurisdiction, he will be granted a hearing if he requested one and shows that there is a genuine dispute of material fact that must be resolved to determine whether the agency violated any of the rights discussed above.” IAF, Tab 4. The administrative judge defined the terms “genuine” and “material,” as well as the preponderant evidence standard. Id. at 8. On review, although the appellant generally states that the initial decision contains erroneous findings of material fact, none of his arguments concern the fact that the action at issue he is raising is his removal from his position as a Housekeeping Aid Supervisor in 2022. PFR File, Tab 1. As a result, we find that the appellant had adequate notice of the standard and burden of proof he needed to satisfy to receive a hearing. See Davis v. Department of Defense , 105 M.S.P.R. 604, ¶ 14 (2007). ¶11As the administrative judge correctly pointed out, the Board has held that veterans’ preference rules appear to apply only to hiring and retention during a reduction in force. Loggins v. U.S. Postal Service , 112 M.S.P.R. 471, ¶ 15 (2009) (citing 5 U.S.C. §§ 3308-3320, 3501-3504); Livingston v. Office of Personnel Management, 105 M.S.P.R. 314, ¶ 15 (2007); ID at 4. The appellant has not made any allegations of such circumstances here. The appellant has not identified, and we are not aware of, any statute or regulation providing veterans’ preference to removals in general. Accordingly, we find that the appellant’s claim is not one on which corrective action under VEOA can be granted, and we dismiss the VEOA claim, without the requested hearing, based on a failure to state a claim. See Williamson v. U.S. Postal Service , 106 M.S.P.R. 502, ¶ 8 (2007) (finding that the Board has the authority to decide a VEOA appeal on the merits, without a hearing, when there is no genuine dispute of material fact and one party must prevail as a matter of law).7 NOTICE OF APPEAL RIGHTS6 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although 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.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.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. 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	Young_DarinCH-3330-23-0258-I-1_Final_Order.pdf	2024-08-23	DARIN YOUNG v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-3330-23-0258-I-1, August 23, 2024	CH-3330-23-0258-I-1	NP
639	https://www.mspb.gov/decisions/nonprecedential/Martinez_Jorge_J_NY-0752-19-0137-I-2_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JORGE JOAQUIN MARTINEZ, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER NY-0752-19-0137-I-2 DATE: August 23, 2024 THIS ORDER IS NONPRECEDENTIAL1 Jorge Joaquin Martinez , San Juan, Puerto Rico, pro se. Katrina Velez and Sabrina E. Redd , Esquires, 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. REMAND ORDER The appellant has filed a petition for review of the initial decision, which sustained his removal. For the reasons discussed below, we AFFIRM 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 findings that the agency proved its charges and the appellant failed to prove his affirmative defenses of discrimination, equal employment opportunity (EEO) reprisal, and a due process violation. We MODIFY the administrative judge’s findings as to why the appellant failed to prove his affirmative defense of reprisal for disclosures protected by 5 U.S.C. § 2302(b)(8) and VACATE her findings as to nexus and penalty. We GRANT the appellant’s petition for review, and REMAND the case to the field office to adjudicate an affirmative defense of reprisal for engaging in activity protected by 5 U.S.C. § 2302(b)(9)(C), in accordance with this Remand Order. BACKGROUND The appellant most recently held the position of Hazardous Materials Specialist for the agency’s Federal Motor Carrier Safety Administration (FMCSA). Martinez v. Department of Transportation , MSPB Docket No. NY- 0752-19-0137-I-1, Initial Appeal File (IAF), Tab 1 at 7; Martinez v. Department of Transportation , MSPB Docket No. NY-0752-19-0137-I-2, Appeal File (I-2 AF), Tab 8, Initial Decision (ID) at 1. His duty station was in Puerto Rico. IAF, Tab 1 at 7. A detailed description of the FMCSA and the work it does is included in the initial decision, and that description does not appear to be in dispute. ID at 4-6. Broadly speaking, the FMCSA has offices throughout the country, and its mission is to “reduce crashes, injuries and fatalities involving large trucks and buses.” E.g., IAF, Tab 8 at 35. The FMCSA’s Hazardous Materials program is designed to “minimize the inherent risks associated with the transportation of [hazardous materials] on our Nation’s highways.” Id. Accordingly, some duties of a Hazardous Materials Specialist, such as the appellant, include providing assistance and guidance to interested parties regarding the transportation of hazardous materials, conducting hazardous materials compliance reviews, conducting investigations, and participating in other activities to improve motor2 carrier safety. E.g., IAF, Tab 13 at 36; ID at 6-7. The agency has described the Hazardous Materials Specialist position as one that involves extensive travel throughout the country. Hearing Transcript, Day 1 (HT1) at 141-42, 144-45 (testimony of Associate Administrator for Field Operations); ID at 8. In January 2019, the agency proposed the appellant’s removal for failure to follow instructions, insubordination, and failure to maintain a condition of employment. IAF, Tab 6 at 18-23. After the appellant responded, the deciding official sustained all the underlying charges and specifications, effectuating the appellant’s removal in March 2019. Id. at 6-11. The appellant filed this timely appeal to challenge his removal. IAF, Tab 1. The administrative judge developed the record and held a hearing before affirming the removal action. HT1; Hearing Transcript, Day 2 (HT2); Hearing Transcript, Day 3 (HT3); ID at 1-2. First, she found that the agency proved each of the specifications underlying each of its charges. ID at 10-27. The administrative judge also found that the agency proved the requisite nexus. ID at 27-28. Next, she found that the appellant failed to prove his affirmative defenses of whistleblower reprisal, ID at 29-45, discrimination based on race, color, national origin, or age, ID at 45-54, and EEO reprisal, ID at 54-56, along with a claim of a due process violation, ID at 56-57. Lastly, the administrative judge found that the agency proved the reasonableness of its penalty. ID at 58-60. The appellant has filed a petition for review. Martinez v. Department of Transportation, MSPB Docket No. NY-0752-19-0137-I-2, Petition for Review (PFR) File, Tab 1. The agency has filed a response, and the appellant has replied. PFR File, Tabs 3-4.3 ANALYSIS The administrative judge properly sustained the agency’s charges. The agency proposed the appellant’s removal based on three charges— failure to follow instructions, insubordination, and failure to maintain a condition of employment—each of which had several underlying specifications. IAF, Tab 6 at 18-20. When the appellant responded, he argued that the agency’s statutory and regulatory authority in Puerto Rico is less than its authority stateside; the agency was acting improperly with respect to its authority in Puerto Rico; and all his alleged misconduct stemmed from his refusal to do the same or his refusal to be treated differently than individuals who worked stateside, where the agency has additional authority. IAF, Tab 9 at 11-22, Tab 11 at 56-81. The deciding official rejected these arguments and sustained each of the charges and specifications. IAF, Tab 6 at 7-9. In the instant appeal, the appellant presented similar arguments regarding the agency’s authority. E.g., IAF, Tab 1 at 5. He effectively admitted the factual underpinnings of the agency’s charges: failure to follow instructions, HT3 at 131-37 (testimony of the appellant), insubordination, id. at 138-41, and failure to maintain a condition of employment, id. at 141-45. The appellant argued, however, that his conduct was justified because of the differences in the agency’s authority between states and territories, such as Puerto Rico. Id. at 131-45. The administrative judge was not persuaded. ID at 10-27. She sustained each of the charges and underlying specifications. Id. Before we turn to each charge, individually, we note that the parties agree that there are some differences between the agency’s authority in a state compared to its authority in Puerto Rico. However, the parties have long disagreed about the extent of those differences and their impact on the appellant. E.g., IAF, Tab 7 at 40-50. That disagreement is the basis for most of all the appellant’s arguments in this appeal.4 On the one hand, the agency has presented a consistent and persuasive explanation of its authority to the appellant and in concert with this appeal. For example, the agency submitted multiple memoranda from its legal department describing its authority in Puerto Rico—memoranda spanning many years—along with proof that it repeatedly provided the appellant with the same explanations throughout his tenure. E.g., IAF, Tab 7 at 40, 50, 117-18, Tab 8 at 4-5, Tab 30 at 7, Tab 31 at 4-11, Tab 32 at 4-7. Generally speaking, the agency has explained that it has direct statutory authority to enforce the Hazardous Materials Regulations at 49 C.F.R. parts 171-180 in Puerto Rico. IAF, Tab 30 at 7, Tab 31 at 7 (citing, e.g., 49 U.S.C. §§ 5102(12)(A), 5103). However, the agency does not have direct authority to enforce the Federal Motor Carrier Safety Regulations at 49 C.F.R. parts 390-97 in Puerto Rico in the same way it does for a state; the agency must instead condition certain funds on Puerto Rico’s adoption and enforcement of those regulations. IAF, Tab 30 at 7, Tab 31 at 8 (citing, e.g., 49 U.S.C. §§ 31101(4), 31102). Because of this distinction, the agency acknowledges that there are some activities—such as roadside inspections—that agency employees can perform in a state but not in Puerto Rico. E.g., IAF, Tab 31 at 8. On the other hand, the appellant has disputed these legal memoranda and other similar explanations from his chain of command. E.g., IAF, Tab 9 at 11-13. Because the appellant is pro se, we have construed his pleadings liberally. Melnick v. Department of Housing and Urban Development , 42 M.S.P.R. 93, 97 (1989) (observing that parties without legal representation are not required to plead issues with precision), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). Even so, his arguments about the agency’s authority are difficult to follow. The appellant appears to suggest that other statutory provisions within Title 49 are inapplicable in Puerto Rico, and those statutes are somehow more authoritative than the statutory authority to which the agency has referred and on which it has relied. E.g., IAF, Tab 9 at 11 (referencing “49 U.S.C. Chapter 5”); I-2 IAF,5 Tab 3 at 4. More importantly, to the extent that the parties agree that agency officials are not authorized to conduct some activities in Puerto Rico, including roadside inspections, the appellant’s argument seems to be that the agency is somehow obligated to either (1) change the existing statutory and regulatory authority so that he can perform all the same day-to-day activities in Puerto Rico as coworkers who have a duty station in a state or (2) exempt him from those activities and the associated certification requirements, which can only be completed by traveling to a state. E.g., IAF, Tab 7 at 24-25, 40, 42, Tab 9 at 12. Charge 1, failure to follow instructions The agency’s failure to follow instructions charge contained eight specifications, each of which concerned a separate instruction from November 2018. IAF, Tab 6 at 18-19. For example, specification 1 alleged that his supervisor instructed the appellant to complete a particular travel authorization for the purpose of conducting roadside inspections in Maryland, but the appellant failed to do so before the designated deadline. Id. at 18. Specification 2 alleged that he was given the same instruction again, after the appellant failed to meet the first deadline, but the appellant again failed to complete the travel authorization. Id. Specification 3 alleged that the supervisor completed the travel authorization after the appellant repeatedly failed to do so, and he instructed the appellant to travel to Maryland for the roadside inspections, but the appellant refused. Id. To prove a charge of failure to follow instructions, an agency must establish that the employee: (1) was given proper instructions; and (2) failed to follow the instructions, without regard to whether the failure was intentional or unintentional. Powell v. U.S. Postal Service , 122 M.S.P.R. 60, ¶ 5 (2014). Even where there is substantial reason to believe that an order is improper, an employee first must obey the order and then challenge its validity, except in “extreme or unusual circumstances” in which he would be placed in a clearly dangerous situation or which would cause him irreparable harm. Pedeleose v. Department of Defense , 110 M.S.P.R. 508, ¶¶ 16-17, aff’d, 343 F. App’x 6056 (Fed. Cir. 2009). This rule reflects the fundamental management right to expect that its decisions will be obeyed and its instructions carried out. Id., ¶ 16. The appellant admitted the underlying conduct for this charge but argued that he was justified in not following instructions because the instructions were improper. ID at 12; e.g., HT3 at 131-37 (testimony of the appellant). The administrative judge was not persuaded. She found that, even if the appellant believed the instructions were not proper, the appellant was obligated to obey them, and then challenge their validity through proper channels. ID at 12-15. On review, the appellant’s arguments specific to charge 1 are limited. He states, without explanation, that the charge was a pretext for discrimination and reprisal. PFR File, Tab 1 at 10. In a similarly conclusory fashion, the appellant also states that he obeyed the agency’s instructions and challenged them through proper channels for many years, and he questions how long he was obligated to continue doing so. Id. at 10-12.2 2 In making these arguments and others, the appellant’s petition for review references pleadings he submitted below. PFR File, Tab 1 at 10-12 (referencing IAF, Tab 71 at 5-11, 33-71, Tab 73 at 8-21). However, the portions of the record to which he refers consist of extensive allegations and arguments, rather than documentary evidence. IAF, Tab 71 at 5-11, 33-71, Tab 73 at 8-21. Those allegations and arguments then refer to countless other portions of the record, many of which are not easily identified. For example, in one of the first referenced pages of arguments from below, there are seven citations. IAF, Tab 71 at 6. And those citations do not simply provide us with a tab and page number from the electronic file, even though the appellant elected to register as an e-filer. IAF, Tab 1 at 2. Instead, the citations consist of references such as “RED color Tab, Exhibit A, Item 35.” IAF, Tab 71 at 6. After extensive searching, we successfully located a table of contents that seems to correspond with the reference. IAF, Tab 13 at 4. Yet we were less successful in finding “Item 35” within that 430-page pleading because the pages are disordered. Id. at 256-57. Simply put, the appellant’s argument on review refers us to arguments he presented below, where he referred to other items in the record that we are unable to locate. This is a pattern throughout his petition. As previously stated, we have construed the appellant’s pleadings liberally. But his failure to clearly direct us to supportive evidence was at his own peril. See, e.g., Tines v. Department of the Air Force , 56 M.S.P.R. 90, 92 (1992) (recognizing that a petition for review must be specific enough to enable the Board to ascertain whether there is a serious evidentiary challenge justifying a complete record review); Weaver v. Department of the Nav y, 2 M.S.P.R. 129, 133 (1980) (explaining that before the Board7 For this charge, the agency’s authority in Puerto Rico, and the appellant’s disagreement about that authority, is not particularly relevant. The various instructions that the appellant failed to follow concerned travel to Maryland, for the completion of assignments there. IAF, Tab 6 at 18-19. Although it is evident that the appellant objected to traveling, and he thought it was unfair that other employees with a duty station stateside were not burdened by travel in the same way that he was, as an employee with a duty station in Puerto Rico, we found nothing to demonstrate that the agency’s instructions were improper and we found nothing to show that compliance with the instructions would have placed him in a clearly dangerous situation or caused him irreparable harm. IAF, Tab 71 at 5-11, 33-71, Tab 73 at 8-21. In fact, the appellant’s argument that he had followed instructions and challenged them through proper channels for many years lends support to the conclusion that compliance was neither dangerous nor harmful. Therefore, the appellant has not shown that the administrative judge erred in sustaining this charge. Charge 2, insubordination The agency’s insubordination charge included three specifications. IAF, Tab 6 at 19-20. Specification 1 alleged that the appellant was given repeated instructions to complete roadside inspections, between November 2018 and January 2019, and the appellant did not comply. Id. at 19. Specification 2 alleged that he was given repeated instructions to complete compliance reviews throughout the same period, but the appellant similarly did not comply. Id. Specification 3 alleged that the appellant was twice instructed to attend a particular staff meeting and did not comply. Id. at 19-20. will undertake a complete review of the record, the petitioning party must explain why the challenged factual determination is incorrect and identify the specific evidence in the record which demonstrates the error); 5 C.F.R. § 1201.114(b) (requiring that a petition for review state a party’s objections to the initial decision, including all of the party’s legal and factual arguments, and be supported by specific references to the record and any applicable laws or regulations).8 Insubordination is the willful and intentional refusal to obey an authorized order of a superior officer which the officer is entitled to have obeyed. Southerland v. Department of Defense , 117 M.S.P.R. 56, ¶ 15 (2011), overruled on other grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31. As previously mentioned, the appellant admits that he did not obey the orders described in this charge, indicating that he refused to comply because he was seeking corrective action for his ongoing dispute about the agency’s authority in Puerto Rico. HT3 at 137-41 (testimony of appellant). The administrative judge considered the appellant’s rationale but did not find it persuasive. ID at 16-19. On review, the appellant argues that this charge was also a pretext for discrimination and reprisal. PFR File, Tab 1 at 13. However, he does not present any substantive arguments to dispute that he engaged in the conduct described. He has, therefore, not presented any basis for us to find that the administrative judge erred in sustaining the insubordination charge. Charge 3, failure to maintain a condition of employment The agency’s failure to maintain a condition of employment charge included two specifications. IAF, Tab 6 at 20. Specification 1 alleged that the appellant did not conduct the commercial motor vehicle roadside inspections required for certification during the 2017-2018 performance year, despite numerous extensions. Id. Specification 2 alleged that he did not conduct the motor carrier compliance reviews required for certification during the same period, despite numerous extensions. Id. This charge consists of two elements: (1) the requirement at issue 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). 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. 9 The administrative judge found that the agency met this burden for both specifications of its charge. ID at 19-27. Broadly speaking, she credited the agency’s explanations of its conditions of employment over the appellant’s assertions that the conditions do not apply to him since his duty station is in Puerto Rico. Id. On review, the appellant once again asserts that the charge was a pretext for discrimination and reprisal. PFR File, Tab 1 at 15. He also argues that the certifications were not required because they were not listed in documents such as the vacancy announcement for his position or his position description. Id. at 15-16 (referencing IAF, Tab 8 at 15-34, Tab 13 at 36-43, Tab 60 at 5-7). However, as the administrative judge recognized, the agency presented documentary and testimonial evidence about how its certification requirements have long been a condition of employment and how the appellant was repeatedly informed of the same. ID at 20-26; see, e.g., IAF, Tab 8 at 15-27 (2012 certification policy), Tab 60 at 5-7 (2015 certification policy), 8-31 (2017 operational policy for inspector training and certification). Therefore, we are not persuaded by the appellant’s argument. Alternatively, the appellant seems to suggest that the certifications concerned activities that agency employees are not authorized to conduct in Puerto Rico, so he need not be certified. PFR File, Tab 1 at 8-9, 16-17. However, the agency explained that the appellant’s position was one in which he was expected to engage in extensive interstate travel and work, like other Hazard Materials Specialists, so the certification remained relevant to him and his position, even though his duty station was in Puerto Rico. E.g., HT2 at 86, 88-89, 120-22 (testimony of Hazardous Material Program Manager), 262-63 (testimony of Division Administrator). The appellant also argues that if he were required to be certified, the agency was obligated to find a way for him to do so in Puerto Rico, or it should have reassigned him somewhere in which he could certify at his duty station. PFR File, Tab 1 at 17-18. Otherwise, according to the appellant,10 the agency is discriminating against him, as compared to those who work stateside and can meet their certification requirements closer to home. Id. This argument also fails. The appellant has presented nothing more than a conclusory assertion—one that is silent to the agency’s explanations of how he cannot perform certain functions in Puerto Rico and how stateside employees also travel to conduct these day-to-day activities and meet their certification requirements. ID at 22-24; see, e.g., HT1 at 190-91 (testimony of Associate Administrator for Field Operations), 266-67, 291-93 (testimony of Field Administrator). In sum, the appellant has not established any basis for us to disturb the administrative judge’s conclusion that the agency proved each of its charges. The appellant failed to prove his discrimination, EEO reprisal, and due process claims. As mentioned above, the administrative judge found that the appellant’s discrimination, EEO reprisal, and due process claims all failed. ID at 45-57. Because the appellant has at least alluded to these matters on review, we will briefly discuss each. Discrimination and EEO reprisal The administrative judge considered but rejected the appellant’s allegations of discrimination based on race, color, national origin, and age. ID at 45-56. She also considered and rejected his claim of EEO reprisal regarding complaints he filed with the Equal Employment Opportunity Commission and in U.S. District Court between 2006 and 2011. ID at 54-56. In analyzing the appellant's discrimination and EEO retaliation claims, the administrative judge identified the legal standard set forth in Savage v. Department of the Army , 122 M.S.P.R. 612 (2015), and concluded that the appellant did not prove that a prohibited consideration was a motivating factor in the removal decision. Following the issuance of the initial decision in this case, the Board issued Pridgen, 2022 MSPB 31, ¶¶ 20-25, 30, which overruled parts of Savage and clarified the proper analytical framework to be applied to affirmative defenses of Title VII11 discrimination and retaliation. Nonetheless, the outcome of this appeal under Pridgen would be the same as that arrived at by the administrative judge. Notably, 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. As further explained below, the appellant’s contentions on review do not provide a basis for disturbing the administrative judge’s finding that the appellant failed to make this showing.3 In short, for the discrimination claims, the administrative judge found that the appellant conflated differences between he and stateside coworkers that were required by law, due to the agency’s more limited authority in Puerto Rico, with unlawful discrimination. ID at 48-54. For the EEO reprisal claim, she found that agency officials involved in the appellant’s removal had limited knowledge of his protected activity, and the appellant presented no substantive or persuasive basis for concluding that the activity was a motivating factor in his removal many years later. ID at 54-56. On review, the appellant disputes the administrative judge’s discrimination findings. PFR File, Tab 1 at 24-26. However, rather than presenting a substantive argument about how the administrative judge may have erred, the appellant has once again referred us to numerous pleadings from the record below, which then cross reference other pleadings, and he does so without explanation. Id. (referencing, e.g., IAF, Tab 72 at 5-23, Tab 73 at 4-21). It seems as if the appellant is pointing us back to arguments that primarily concern his long-standing dispute about the agency’s authority in Puerto Rico, or his dissatisfaction with other agency matters, where he summarily attributed matters to discrimination and reprisal. Id. For example, one of the referenced pleadings from below contains an assertion that the agency offered the appellant a 3 Because the appellant failed to prove that a prohibited consideration was a motivating factor, he necessarily failed to prove it was a “but-for” cause of his removal. See Pridgen, 2022 MSPB 31, ¶ 22.12 reassignment in 2007 but did not offer to pay relocation expenses, along with the appellant’s allegation that the failure to offer relocation expenses was the result of “a pattern of discrimination, harassment, hostile work environment, refusal to answer and / or take corrective action, and disparate treatment.” IAF, Tab 72 at 10. This referenced pleading from below also contains an allegation that the agency once considered closing its Puerto Rico Division, in 2012, which the appellant attributed to a “continued . . . pattern of discrimination, harassment and hostile work environment, and disparate treatment towards the Puerto Rico Division and or its employees.” Id. at 12. These arguments, without more, are unavailing. The appellant disputes the administrative judge’s EEO reprisal findings in a similar manner. PFR File, Tab 1 at 26-27. Rather than present a substantive argument and explanation, the appellant merely asserts that the administrative judge erred, while referring us to the same pleadings from the record below, which then cross reference other pleadings. Id. (referencing, e.g., IAF, Tab 72 at 5-23, Tab 73 at 4-7). Again, those pleadings contain a litany of conclusory allegations dating back to 2004, but we found nothing that would meet the appellant’s burden of proving his EEO reprisal claim. Due Process The administrative judge next considered and rejected the appellant’s claim that the agency violated his right to due process. ID at 56-57. This claim arose from the deciding official indicating that he relied on its 2012 certification policy, rather than its 2015 certification policy, when he sustained the failure to maintain a condition of employment charge. Id. The administrative judge found that the differences between them were not meaningful for purposes of the agency’s charge—under either policy, the appellant failed to conduct the inspections and reviews necessary for certification. Id. On review, the appellant asserts that the administrative judge erred in denying this claim. PFR File, Tab 1 at 32-33 (referencing IAF, Tab 63 at 4-6).13 He argues that the deciding official’s reliance on the 2012 policy, rather than the 2015 policy, shows that the agency acted haphazardly as it attempted to cover up discrimination and reprisal. Id. We have reviewed the 2012 policy and the 2015 policy. Compare IAF, Tab 8 at 15-34 (2012 policy), with IAF, Tab 60 at 5-35 (2015 policy). Both require that the appellant complete a minimum of 32 roadside inspections and 6 compliance reviews or inspections each year, far more than the appellant completed. E.g., IAF, Tab 8 at 15-16, 19-21, Tab 60 at 9-11, 15-16, 25-26. In the absence of an explanation from the appellant, it is not apparent to us how these policies contain any difference that is meaningful for purposes of his response to the charges or this appeal. Therefore, we agree with the administrative judge. The appellant has not shown that the deciding official’s reliance on the 2012 policy denied him due process. See Palafox v. Department of the Navy, 124 M.S.P.R. 54, ¶ 9 (2016) (explaining that due process requires that an individual such as the appellant be given a meaningful opportunity to respond before an adverse action). The appellant failed to prove his claim of reprisal for making disclosures protected under 5 U.S.C. § 2302(b)(8). Pursuant to the Whistleblower Protection Enhancement Act of 2012 (WPEA), to prevail on a prohibited personnel practice affirmative defense in a chapter 75 appeal that independently could form the basis of an individual right of action appeal, the appellant must first demonstrate by preponderant evidence that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the disclosure or activity was a contributing factor in the adverse action. See Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶¶ 12-13 (2015) (recognizing that, under the WPEA, an appellant may raise an affirmative defense of whistleblower retaliation based on protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D)); Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 1914 (2013) (stating the foregoing proposition concerning disclosures protected by 5 U.S.C. § 2302(b)(8)). If the appellant meets this burden, then the burden of persuasion shifts to the agency to prove by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected disclosure or activity. Alarid, 122 M.S.P.R. 600, ¶ 14. Disclosures made between 2004-2006 As the administrative judge considered the appellant’s whistleblower reprisal claim, she first discussed a series of emails dated between 2004-2006. ID at 31-36. She found that the appellant failed to prove that any of these emails contained a protected disclosure. Id. A disclosure is protected under section 2302(b)(8) if it includes information that the appellant reasonably believes evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Bradley v. Department of Homeland Security , 123 M.S.P.R. 547, ¶ 7 (2016). The proper test for determining whether an employee had a reasonable belief that his disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the disclosure evidenced one of the circumstances described in 5 U.S.C. § 2302(b)(8). Id. For the emails dated between 2004-2006, the administrative judge found that the appellant posed some questions and made some recommendations, but he did not disclose that the agency was violating the law or engaging in any other impropriety. ID at 31-36. The one exception was an email in which the appellant alleged discrimination, but the administrative judge correctly noted that disclosures limited to EEO matters protected by Title VII do not constitute whistleblowing activity under section 2302(b)(8). ID at 35-36; see Applewhite v. Equal Employment Opportunity Commission , 94 M.S.P.R. 300, ¶ 13 (2003); Redschlag v. Department of the Army , 89 M.S.P.R. 589, ¶ 84 (2001). 15 On review, the appellant asserts that one of his emails, from August 2004, does contain a protected disclosure, despite the administrative judge’s finding to the contrary. PFR File, Tab 1 at 21 (referencing IAF, Tab 13 at 397-98). In particular, he directs us to a passage in that email where the appellant stated, “However, there are some PR Division specific HM issues, such as . . . the new HM Permitting Program authority and or applicability in the territories.” Id. The appellant also seems to assert that a February 2005 email from his supervisor, responding to an email from the appellant, contains a protected disclosure. Id. at 22 (referencing IAF, Tab 13 at 72-74). Although we have reviewed the documents which the appellant has referenced, we are not persuaded. The appellant has not articulated any persuasive reason for us to find that he disclosed the type of information protected under section 2302(b)(8) in these emails, nor has he presented any basis for us to conclude that these emails were a contributing factor in his removal, which did not occur until more than 10 years later. Additional disclosures made more recently The administrative judge next considered the appellant’s numerous more recent disclosures, which spanned many years and generally alleged that the agency was violating the law regarding its authority in Puerto Rico, as compared to its authority in a state. ID at 37-42; see, e.g., IAF, Tab 9 at 11-13. For these disclosures, she found that the appellant failed to prove that he had a reasonable belief that he was disclosing a violation of law or other impropriety listed in section 2302(b)(8). Id. In the alternative, the administrative judge found that the appellant failed to prove the contributing factor criterion. ID at 42-45. As further detailed below, we agree that the appellant failed to prove that he made a disclosure protected by section 2302(b)(8). However, we must vacate the administrative judge’s alternative findings for the contributing factor criterion. Once again, the appellant has long disputed the agency’s authority in Puerto Rico, culminating in the misconduct underlying this removal action.16 Supra pp. 4-6. He has continued to dispute the agency’s authority on review. E.g., PFR File, Tab 1 at 28-32. But, for the reasons previously mentioned, we agree with the administrative judge’s determination that the appellant failed to prove that he reasonably believed he was disclosing the type of wrongdoing described in section 2302(b)(8). Even though we have construed the appellant’s pleadings liberally, it is still not apparent to us why the appellant believes the agency is violating the law or engaging in any other impropriety. The appellant has continually claimed that the agency was violating statutes or regulations, but he has not provided a reasoned explanation and evidence of the same. For example, the appellant’s petition for review asserts, without any explanation or citation to evidence, that “49 USC, Subtitle VI, Part B, Chapter 311, Subchapter III, Safety Regulation, is not applicable to” Puerto Rico, but “the agency is using this statute to conduct compliance/enforcement activities in Puerto Rico.” PFR File, Tab 1 at 29. This and the other arguments the appellant presented about his alleged disclosures do not provide us with a basis for reaching a conclusion different than the administrative judge regarding his burden of proving that he made a protected disclosure. Although we agree with the administrative judge regarding the appellant’s failure to prove that he made a disclosure protected by section 2302(b)(8), we disagree with her finding that the appellant also failed to prove the contributing factor criterion. One way of proving that an appellant’s protected activity was a contributing factor in a personnel action is the “knowledge/timing” test. Alarid, 122 M.S.P.R. 600, ¶ 13. Under this test, an appellant can establish that his prior protected activity was a contributing factor in the challenged action by showing that relevant parties knew of the protected activity and took the personnel action within a period of time such that a reasonable person could conclude that the protected activity was a contributing factor in the action. Id. As the administrative judge analyzed the contributing factor criterion, she failed to consider the knowledge/timing test, even though one of the many17 instances in which the appellant alleged that the agency was violating the law regarding its authority in Puerto Rico was in his response to the proposed removal. ID at 42-45; e.g., IAF, Tab 9 at 11-13. We must therefore vacate her contributing factor analysis. Nevertheless, because the appellant failed to meet the entirety of his burden, the result remains the same for these disclosures. Remand is required to consider a claim of reprisal for engaging in activity protected under 5 U.S.C. § 2302(b)(9)(C). Even though the appellant failed to prove that he made a disclosure protected under section 2302(b)(8), our analysis does not stop there. As mentioned above, an appellant may also present a viable affirmative defense of retaliation for engaging in activity protected by sections 2302(b)(9)(A)(i), (B), (C), or (D). Of those, it is particularly noteworthy that an employee engages in activity protected by section 2302(b)(9)(C) by disclosing information to the agency’s Office of Inspector General (OIG) or to the Office of Special Counsel (OSC) “in accordance with applicable provisions of law.” Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. Under that broadly worded provision, any disclosure of information to OIG or OSC is protected, regardless of its content, as long as the disclosure is made in accordance with applicable provisions of law. Id. The administrative judge indicated that the appellant filed one complaint with OSC in May 2018, and another complaint with the agency’s OIG in October 2018. ID at 42-44. However, she made no mention of section 2302(b)(9) in the initial decision, despite having done so in a prior affirmative defense order. ID at 29-42; IAF, Tab 4 at 13. Instead, the administrative judge was singularly focused on section 2302(b)(8) in her whistleblower reprisal analysis. ID at 29-42. Under the circumstances of this case, we find that remand is appropriate. See Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (explaining that the administrative judge, as the hearing officer, is in the best position to make factual findings and detailed credibility assessments).18 On remand, the administrative judge should afford the parties an opportunity to submit further argument and evidence concerning the appellant’s alleged complaints to OIG and OSC. She must then consider Fisher and precisely identify any activity the appellant engaged in that is protected under section 2302(b)(9)(C).4 Supra p. 18. If necessary, she must also make complete contributing factor findings, including ones that address the knowledge/timing test. Supra p. 17; see, e.g., IAF, Tab 6 at 7, Tab 9 at 16, Tab 13 at 208-10. If the appellant meets his burden of proving that he engaged in activity protected under section 2302(b)(9)(C) and proving that this activity was a contributing factor in his removal, the burden shifts to the agency. Supra p. 14. The administrative judge must then determine whether the agency has proven by clear and convincing evidence that it would have taken the same action in the absence of the appellant’s protected activity. Id. We note that the initial decision contains some descriptions of hearing testimony that may be relevant to the parties’ burdens. For example, it describes how a couple of officials testified that they knew of the appellant’s OIG complaint but denied that it had any role in the appellant’s removal. ID at 44. However, those descriptions are not accompanied by credibility findings. To the extent that the administrative judge considers and relies on hearing testimony as she analyzes whether the parties have met their respective burdens, she should ensure that the remand initial decision contains appropriate credibility determinations. See Spithaler v. Office of Personnel Management , 1 M.S.P.R. 587, 589 (1980) (stating that an initial decision must identify all material issues of fact and law, summarize the evidence, resolve issues of credibility, and include 4 We were able to locate evidence of the appellant’s OIG complaint. IAF, Tab 13 at 208-10. We were less successful, though, in locating the appellant’s OSC complaint. Instead, we found only numerous mentions of the complaint. E.g., id. at 365, 377, 388; ID at 37, 42-43. On remand, the parties should be sure to provide clear citations to the extensive record.19 the administrative judge’s conclusions of law and his legal reasoning, as well as the authorities on which that reasoning rests). The appellant’s remaining arguments are unavailing or premature. The appellant has made additional arguments that we have considered but do not find persuasive. For example, he describes a line of questioning from the administrative judge, where she noted that the appellant chose to work in Puerto Rico rather than a state, and he argues that this passage from the hearing shows that the administrative judge was biased against him. PFR File, Tab 1 at 4-5 (referencing HT1 at 287). We disagree. In context, it is apparent that the administrative judge’s questions and comments were part of her attempt to understand the appellant’s arguments, many of which concerned the differences between him and those in a similar position working stateside. See Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (holding that 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”) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)); Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980) (finding that in making a claim of bias or prejudice against an administrative judge, a party must overcome the presumption of honesty and integrity that accompanies administrative adjudicators). The appellant also seems to assert that the administrative judge either did not consider his closing arguments and objections, or she improperly ruled against him concerning the matters discussed within. PFR File, Tab 1 at 6 (referencing I-2 AF, Tabs 3, 5; HT1 at 20-117). However, his assertion is lacking in specificity. He does not direct us to any particular piece of evidence or argument, explain its relevance, or demonstrate that the administrative judge abused her discretion. See Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 15 (2016) (recognizing that an administrative judge’s failure to mention all of20 the evidence of record does not mean that she did not consider it in reaching her decision); Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011) (recognizing that an administrative judge has broad discretion to exclude evidence and witnesses which have not shown to be relevant; to obtain reversal for an abuse of that discretion the petitioning party must show that the excluded evidence was relevant and could have affected the outcome). The same is true of an additional assertion, in which the appellant alleges that the administrative judge erred by excluding other issues he raised, including allegations that the agency improperly administered his home leave and failed to comply with certain travel requirements. PFR File, Tab 1 at 6-7. Next, the appellant indicates that the administrative judge misstated the date on which his first-level supervisor verbally counselled him regarding certification requirements. PFR File, Tab 1 at 10. On this point, the appellant is correct. The administrative judge mistakenly listed the date as June 2019, rather than June 2018. Compare ID at 8 (indicating that the verbal counseling occurred in June 2019), with HT2 at 226-27, 229-33 (testimony of Division Administrator). However, this error, contained in the administrative judge’s explanation of the circumstances giving rise to this appeal, is inconsequential. Although we considered the appellant’s other arguments and found them unavailing, we have not yet considered his arguments concerning nexus and the reasonableness of the agency’s penalty because it would be premature to do so. PFR File, Tab 1 at 18-19, 27-28. Instead, we vacate the administrative judge’s findings on those matters. Hall v. Department of Transportation , 119 M.S.P.R. 180, ¶ 8 (2013) (vacating an administrative judge’s findings for nexus and the penalty because the appeal required remand for the administrative judge to consider the appellant’s affirmative defenses), overruled on other grounds by Thurman v. U.S. Postal Service , 2022 MSPB 21. If the administrative judge finds that the appellant’s affirmative defense of reprisal for activity protected by section 2302(b)(9)(C) fails, she may incorporate her prior findings21 regarding nexus and the reasonableness of the agency’s penalty in the new decision. ORDER For the reasons discussed above, we remand this case to the field office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.22	Martinez_Jorge_J_NY-0752-19-0137-I-2_Remand_Order.pdf	2024-08-23	JORGE JOAQUIN MARTINEZ v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. NY-0752-19-0137-I-2, August 23, 2024	NY-0752-19-0137-I-2	NP
640	https://www.mspb.gov/decisions/nonprecedential/Jackson_Clarence_J_DC-752S-21-0065-I-1_DC-1221-19-0022-W-2_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CLARENCE J. JACKSON, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-752S-21-0065-I-1 DATE: August 23, 2024 THIS ORDER IS NONPRECEDENTIAL1 Clarence J. Jackson , Rockville, Maryland, pro se. Randy W. Stone , Falls Church, 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. REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed his challenge to a 14-day suspension for lack of jurisdiction. For the reasons discussed below, we GRANT the appellant’s petition for review, 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). VACATE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW In January 2020, the agency suspended the appellant from his Facilities Manager position for 14 days, based on charges of failure to follow instructions and lack of candor. Initial Appeal File (IAF), Tab 1 at 8, 13-14. In November 2020, the appellant filed the instant appeal, alleging that his 14-day suspension was the product of whistleblower retaliation. Id. at 4, 6. On his initial appeal form, the appellant indicated that he had not yet filed a whistleblower complaint with the Office of Special Counsel (OSC). Id. at 5. The administrative judge issued orders explaining the Board’s jurisdictional limitations, including some limitations involving individual right of action (IRA) appeals, and instructing the appellant to meet his jurisdictional burden. IAF, Tab 2 at 2-4, Tab 3 at 1-3. Over the following weeks, the appellant twice requested additional time to respond, which the administrative judge granted. IAF, Tabs 6-9. Within one of those requests, he attached a September 2020 closeout letter from OSC, showing that he had filed a whistleblower complaint regarding his 14-day suspension, despite the earlier indication to the contrary. IAF, Tab 6 at 6. The appellant did not, however, submit any other argument or evidence regarding his jurisdictional burden. The administrative judge dismissed the appellant’s appeal, finding that he failed to meet his burden of proving that the Board had jurisdiction over this appeal. IAF, Tab 11, Initial Decision (ID). The appellant has filed a petition for review, arguing that medical conditions interfered with his ability to obtain representation and meet his jurisdictional burden. Petition for Review (PFR) File, Tab 1.2 The appellant’s 14-day suspension is not appealable under chapter 75. The Board’s jurisdiction is not plenary; it is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An appellant must prove jurisdiction by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(A). Suspensions of more than 14 days are within the Board’s jurisdiction under 5 U.S.C. §§ 7512(2) and 7513(d), however, a suspension of 14 days or fewer is not an appealable action under those provisions. Lefavor v. Department of the Navy, 115 M.S.P.R. 120, ¶ 5 (2010). Here, evidence the appellant submitted shows that his suspension was 14 days. IAF, Tab 1 at 8, 10, 13. Therefore, we agree with the administrative judge’s determination that the appellant failed to prove that his suspension is appealable under chapter 75. ID at 2-3. The appellant must be given an opportunity to establish jurisdiction over his suspension in an IRA appeal. Unlike chapter 75 appeals, IRA appeals are not limited to suspensions of a certain duration. To establish the Board’s jurisdiction over an IRA appeal, an appellant must have exhausted his administrative remedies before OSC and make nonfrivolous allegations of the following: (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity as specified in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 5 U.S.C. §§ 1214(a)(3), 1221; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016); see Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001). For the reasons that follow, we find that this appeal must be remanded to give the appellant an opportunity to meet that burden. In her orders on jurisdiction, the administrative judge acknowledged that an appellant may be able to establish jurisdiction in an IRA appeal involving a3 14-day suspension, but neither provided the full jurisdictional burden of proof. The first order generally described how the relevant whistleblower statutes prohibit retaliation for protected disclosures and certain other protected activities. IAF, Tab 2 at 3 (citing 5 U.S.C. § 2302(b)(8), (9)). The second order explained that, if the appellant intended to bring an IRA appeal, additional information was needed. IAF, Tab 3 at 1-2. In particular, the administrative judge noted that the appellant’s initial pleading indicated that he had not filed a complaint with OSC, but exhaustion of administrative remedies with OSC is a prerequisite to bringing an IRA appeal before the Board. Id. at 2-3 (referencing IAF, Tab 1 at 5). The administrative judge indicated that, if the appellant had filed a complaint with OSC, he should submit a copy of the complaint and OSC’s closeout letter. Id. at 3 n.4. As mentioned above, the appellant did submit his OSC closeout letter in one of his requests for a time extension. IAF, Tab 6 at 6-7. According to that closeout letter, OSC had considered several alleged disclosures, along with allegations that the agency retaliated by giving the appellant a low performance rating and suspending him for 14 days. Id. at 6. It is evident that, although the administrative judge considered and approved the appellant’s request for a time extension, she overlooked the attached OSC closeout letter. The administrative judge dismissed this appeal without providing the appellant with his complete jurisdictional burden for an IRA appeal or otherwise addressing his evidence of exhaustion with OSC. ID at 2-3. Because the appellant provided proof of OSC exhaustion regarding a claim that his 14-day suspension was retaliation for whistleblowing, but he was not informed of his other jurisdictional requirements, remand is appropriate. See Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985) (finding that an appellant must receive explicit information on what is required to establish an appealable jurisdictional issue). We, therefore, need not4 address the appellant’s arguments about his medical conditions interfering with his ability to establish jurisdiction below. ORDER For the reasons discussed above, we REMAND this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.5	Jackson_Clarence_J_DC-752S-21-0065-I-1_DC-1221-19-0022-W-2_Remand_Order.pdf	2024-08-23	CLARENCE J. JACKSON v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-752S-21-0065-I-1, August 23, 2024	DC-752S-21-0065-I-1	NP
641	https://www.mspb.gov/decisions/nonprecedential/Thomas_Wayne_A_DC-3443-19-0797-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WAYNE ALLEN THOMAS, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-3443-19-0797-I-1 DATE: August 23, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Wayne Allen Thomas , Chester, Virginia, pro se. Richard Todd , Esquire, Arlington Heights, 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 for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 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 filed an initial appeal challenging the agency’s rescission of a tentative job offer. Initial Appeal File (IAF), Tab 1. The administrative judge issued two orders instructing the appellant to meet his jurisdictional burden, but the appellant did not file a response. IAF, Tabs 2-3. Accordingly, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 4, Initial Decision. Approximately 10 months after the initial decision became final, the appellant filed the instant petition for review, making the same basic assertions as in his initial appeal. Petition for Review (PFR) File, Tabs 1-3. The agency has filed a response, arguing that the appellant’s petition for review was untimely and that the initial decision correctly found that the Board lacks jurisdiction over the appellant’s appeal. PFR File, Tab 9. DISCUSSION OF ARGUMENTS ON REVIEW The Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation . Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An agency’s rescission of a tentative offer of employment is generally not appealable to the Board. Ricci v.2 Merit Systems Protection Board , 953 F.3d 753, 756-57 (Fed. Cir. 2020). The Board generally lacks jurisdiction over a claim that an agency failed to select or appoint an appellant to a position except in limited circumstances. See Pridgen v. Office of Management and Budget , 117 M.S.P.R. 665, ¶ 6 (2012). The administrative judge properly informed the appellant of exceptions to the general rule and that he bears the burden of proof on the issue of jurisdiction. IAF, Tab 3; see 5 C.F.R. § 1201.56(b)(2)(i)(A). We agree with the administrative judge that the appellant failed to make a nonfrivolous allegation of Board jurisdiction for the reasons stated in the initial decision. The appellant’s submissions on review provide no basis to disturb that analysis. Because the petition for review does not meet the Board’s criteria for review, we do not reach the issue of whether the appellant established good cause for his delay in filing his petition for review by approximately 10 months. See 5 C.F.R. § 1201.114(e), (g). NOTICE OF APPEAL RIGHTS1 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this 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. 1 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.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 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, 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.2 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 2 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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	Thomas_Wayne_A_DC-3443-19-0797-I-1_Final_Order.pdf	2024-08-23	WAYNE ALLEN THOMAS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-3443-19-0797-I-1, August 23, 2024	DC-3443-19-0797-I-1	NP
642	https://www.mspb.gov/decisions/nonprecedential/Wong_WilsonSF-0752-17-0382-A-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD WILSON WONG, Appellant, v. DEPARTMENT OF AGRICULTURE, Agency.DOCKET NUMBER SF-0752-17-0382-A-1 DATE: August 23, 2024 THIS ORDER IS NONPRECEDENTIAL1 Laura L. Nagel , Esquire, Washington, D.C., for the appellant. Yvette Banker , Esquire, Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member REMAND ORDER ¶1The appellant has filed a petition for review of the addendum initial decision, which denied the appellant’s motion for attorney fees. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the addendum initial decision, and REMAND this appeal for issuance of a new addendum initial decision consistent 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 an Investigator in the agency’s Retail Investigations Branch, which is a position that requires nationwide travel. Wong v. Department of Agriculture , MSPB Docket No. SF-0752-17-0382-I-1 Initial Appeal File (IAF), Tab 13 at 12, 60, 64. On June 9, 2016, while the appellant was on a performance improvement plan, he submitted to the agency a letter from his physician dated June 7, 2016, explaining that it would be “detrimental” to the appellant’s health for him to be assigned a job away from where he resides and that a restriction on work outside of the region should “be in place for the next 12 months.” Id. at 74-75. Thereafter, on March 22, 2017, the agency removed him from his position for medical inability to perform. Id. at 12-17, 55-58. ¶3The appellant timely filed a Board appeal claiming that the agency had wrongfully removed him and raising affirmative defenses of, among other things, disability discrimination and whistleblower retaliation. IAF, Tab 1, Tab 19 at 13-14. During the course of litigation, the appellant submitted a new, second note from his physician, dated May 26, 2017, stating that, in light of the appellant’s “improvement and progress,” he was “releasing or voiding” the medical restriction on travel, and confirming that the appellant is able to “perform the full duties and all aspects of his job.” IAF, Tab 11 at 5. ¶4After holding the appellant’s requested hearing, the administrative judge issued an initial decision finding that the agency proved by preponderant evidence that the appellant was medically unable to perform the essential functions of his position at the time of his removal, and that the appellant failed to prove his affirmative defenses. IAF, Tab 32, Initial Decision (ID) at 6-22. However, she found that the penalty of removal was not reasonable because the appellant’s medical restriction on travel was to end 2½ months after his removal, and there was nothing in the record to suggest that the restriction was placing an undue strain on the agency such that it could not wait the remaining time until the2 restriction expired to determine whether the appellant could resume his normal duties. ID at 23-24. Accordingly, she reversed the removal action. ID at 25. That decision became the final decision of the Board on the merits on December 27, 2017, after neither party filed a petition for review. ¶5Thereafter, on February 22, 2018, the appellant filed a timely motion for attorney fees, initially seeking $51,631.30 in attorney fees. Wong v. Department of Agriculture, MSPB Docket No. SF-0752-17-0382-A-1, Attorney Fees File (AFF), Tab 1 at 4, 15-19. Subsequently, he supplemented the attorney fees petition to include additional fees of $301.00 incurred in preparing the response to the Acknowledgment Order and $1,986.60 incurred for reviewing the agency’s Objection to Attorney’s Fees, researching the cases cited, preparing a response, preparing this second supplemental declaration, and filing these documents. AFF, Tabs 3, 5. Thus, the total fees sought were $53,918.90. AFF, Tab 5. ¶6In an addendum initial decision, the administrative judge denied the motion, finding that, although the appellant was the prevailing party, an attorney -client relationship existed between the appellant and his counsel, and he incurred fees in connection with his appeal, fees were not warranted in the interest of justice. AFF, Tab 6, Addendum Initial Decision (AID) at 3-9.2 In so finding, she concluded that the agency did not mislead the appellant, did not fail to put him on notice of the kind of evidence that he needed to prevail, and that the reversal of his removal was not based on evidence that was readily available to the agency before the hearing. AID at 8. Relying on the appellant’s physician’s medical note from May 26, 2017, she found that reversal of the action was based on medical evidence presented by the appellant before the Board. AID at 8. ¶7In his petition for review, the appellant contends that fees are warranted in the interest of justice because, based on the June 7, 2016 letter he submitted to the 2 The administrative judge did not mention the appellant’s second supplemental motion for fees in the AID, and thus, based on the appellant’s initial fee motion and first supplemental motion, she erroneously stated that the appellant sought $51,631.30 plus $301.00 in fees. AID at 2.3 agency prior to his removal, the agency knew or should have known at the time of the removal that there was a foreseeable end to his inability to perform his duties. Petition for Review (PFR) File, Tab 1 at 7-9. In the alternative, he argues that fees are warranted in the interest of justice from the time that the agency knew that the appellant could resume his duties based on medical evidence submitted while the appeal was pending before the administrative judge. Id. at 9-10. The agency has responded in opposition. PFR File, Tab 3. ANALYSIS ¶8An appellant bears the burden of establishing his entitlement to an award of attorney fees. Parker v. Office of Personnel Management , 75 M.S.P.R. 688, 691 (1997). To establish entitlement to an award of attorney fees, an appellant must show that: (1) he was the prevailing party; (2) he incurred attorney fees pursuant to an existing attorney-client relationship; (3) an award of fees is warranted in the interest of justice; and (4) that the amount of fees claimed is reasonable. Hart v. Department of Transportation , 115 M.S.P.R. 10, ¶ 13 (2010). ¶9We agree with the administrative judge that the appellant established that he was the prevailing party, that an attorney-client relationship existed between the appellant and his counsel, and that he incurred fees in connection with his appeal. AID at 4-5. However, as explained below, we find that she erred in finding that fees are not warranted in the interest of justice. An award of attorney fees is warranted in the interest of justice because the agency knew or should have known it would not prevail on the merits of the action at the time it removed the appellant. ¶10An award of attorney fees is warranted in the interest of justice under 5 U.S.C. § 7701(g): (1) when the agency engaged in a “prohibited personnel practice”; (2) when the agency’s action was “clearly without merit,” or was “wholly unfounded,” or the employee is “substantially innocent” of the charges; (3) when the agency initiated the action against the employee in “bad faith”; (4) when the agency committed a “gross procedural error” that “prolonged the4 proceeding” or “severely prejudiced” the employee; or (5) when the agency “knew or should have known that it would not prevail on the merits” when it brought the action. Coffman v. Office of Special Counsel , 2022 MSPB 18, ¶ 10; Allen v. U.S. Postal Service , 2 M.S.P.R. 420, 434-35 (1980). ¶11In the addendum initial decision, the administrative judge determined that categories 1, 3, and 4 were not applicable, and she considered only categories 2 and 5. AID at 4. In considering category 5, whether the agency knew or should have known it would not prevail on the merits when it brought the action, she stated that there was “credible, probative evidence supporting the agency’s charge against the appellant” and that it was “only after the appellant filed his appeal with the Board that he provided new medical evidence which removed the medical restriction” on travel. AID at 5. Therefore, she found in the addendum initial decision that the agency’s action was “meritorious at the time it was taken.” AID at 5. Thus, she found that attorney fees were not warranted in the interest of justice under this category. Id. ¶12We disagree. In considering whether attorney fees are warranted in the interest of justice, an administrative judge’s findings from the initial decision on the merits—not a subsequent characterization and interpretation of them—control the analysis. Yow v. Department of the Treasury , 28 M.S.P.R. 411, 413 (1985); see Yorkshire v. Merit Systems Protection Board , 746 F.2d 1454, 1458 (Fed. Cir. 1984); Capeless v. Department of Veterans Affairs , 78 M.S.P.R. 619, 622-23 (1998); Akin v. Department of the Army , 27 M.S.P.R. 61, 63 n.4 (1985). In the initial decision on the merits, the administrative judge found that, at the time the agency made the decision to remove the appellant, it knew that the appellant’s medical restriction on travel was set to expire in 2½ months, and it had no evidence at that time that the appellant would be unable to resume his full range of duties at the end of the 12-month period described in the June 7, 2016 medical note. ID at 22-23. Additionally, she observed that the appellant had never been under a travel restriction before. Id. Moreover, in the merits initial decision, the5 administrative judge acknowledged the appellant’s subsequent medical documentation submitted for the first time on appeal, which included the appellant’s physician’s May 26, 2017 letter, but she explicitly made “no findings as to the sufficiency of medical evidence concerning [the appellant’s] ability to perform his duties subsequent to his removal.”3 ID at 10 n.5. Thus, her reliance on the impending expiration of the 12-month limitation on the appellant’s travel, as set forth in the June 7, 2016 letter, as grounds for reversal of the removal action is clear on its face. We are bound by that determination in our assessment of whether attorney fees are warranted in the interest of justice. See Yow, 28 M.S.P.R. at 413; see also Yorkshire, 746 F.2d at 1458; Capeless, 78 M.S.P.R. at 622-23; Akin, 27 M.S.P.R. at 63 n.4. ¶13In Lambert v. Department of the Air Force , 34 M.S.P.R. 501, 506-07 (1987), the Board explained that an agency’s penalty selection is part of the merits of the case and found that fees are warranted in the interest of justice under Allen category 5 (knew or should have known) when the Board’s decision to mitigate the penalty is based on information or evidence that was presented to the agency at the time it made its decision to remove an employee. See Miller v. Department of the Army , 106 M.S.P.R. 547, ¶ 11 (2007). Based on the 3 In the addendum initial decision, the administrative judge considered the appellant’s physician’s testimony at the hearing on the removal that, depending on the appellant’s condition, the travel restriction could have been extended and that there was a possibility that the appellant could have relapsed. AID at 8 n.2. She relied on this testimony to reject the appellant’s argument that the agency knew or should have known at the time it removed the appellant that it would not prevail on the merits of the action. Id. Although the administrative judge considered this testimony in the initial decision on the merits, it was to highlight the potential flexibility of the restriction, explaining that it also could have ended earlier than 12 months if medically appropriate, to further support her finding that the agency had no evidence at the time of the appellant’s removal that he would be unable to perform the duties of his position following the expiration of the medical restriction. ID at 23. We do not believe that this testimony conflicts with the finding in the merits initial decision concerning what evidence the agency had at the time of the appellant’s removal regarding the timeframe of the medical restrictions, nor does it undermine our finding that the agency knew or should have known at the time of the removal action that it would not prevail on the merits of the action.6 foregoing, we find that the agency had the information on which the administrative judge based her mitigation of the penalty at the time it made its decision to remove the appellant, and therefore, we conclude that the agency knew or should have known at the time it took the removal action that it would not prevail on the merits of the action. Accordingly, we find that attorney fees are warranted in the interest of justice under Allen category 5.4 See id.; see also Capeless, 78 M.S.P.R. at 624 -25; Matthews v. U.S. Postal Service , 78 M.S.P.R. 523, 525 (1998); Lambert, 34 M.S.P.R. at 506-07; Allen, 2 M.S.P.R. at 434-35.5 Because it found otherwise, we vacate the addendum initial decision. We remand this matter for a determination on the reasonableness of the amount of fees requested. ¶14The issue of the reasonableness of the amount of the requested attorney fees remains to be determined. Generally, the administrative judge who decided an 4 We acknowledge that penalty mitigation alone does not create a presumption in favor of satisfaction of any of the Allen categories. See Dunn v. Department of Veterans Affairs, 98 F.3d 1308, 1313 (Fed. Cir. 1996) (agreeing with the Board’s rejection of a per se rule in favor of fees in cases when the charges are sustained but the penalty is mitigated and explaining that no presumption exists that fees are warranted in such cases). Here, however, as noted above, the penalty of removal was not mitigated; it was reversed. Further, the only evidence in the agency’s possession at the time it removed the appellant indicated that his medical limitation on travel was going to expire in 2½ months. As noted by the administrative judge in the initial decision on the merits, the agency “failed to proffer any evidence that might have reasonably led it to believe that the appellant was not going to be able to resume his duties at the end of the one-year restriction.” ID at 23. She further observed that there was no evidence that the agency asked the appellant to provide any updated medical information prior to his removal or any evidence that waiting several more months to determine whether he was able to return to his full range of duties would have placed a “sufficient burden” on the agency. Id. Therefore, although there is no per se rule that attorney fees are warranted in the interest of justice when the penalty has been mitigated, for the reasons stated above we find that the interest of justice standard has been satisfied here. 5 Because the initial decision on the merits did not reverse the action based on evidence that was first presented after the action was appealed to the Board, the consideration of whether the removal action was “clearly without merit” as contemplated in the second Allen category is not relevant here, and we decline to consider it further. See Yorkshire, 746 F.2d at 1457 (explaining that the standard in Allen category 2 “refers to the result of the case before the Board, not to the evidence and information available prior to the hearing).7 appeal on the merits is in the best position to evaluate the documentation submitted by counsel to determine whether the amount of the fees requested is reasonable and to evaluate the quality of the representation afforded by counsel. Caros v. Department of Homeland Security , 122 M.S.P.R. 231, ¶ 19 (2015); Thomas v. U.S. Postal Service , 77 M.S.P.R. 502, 507-08 (1998) . Accordingly, we remand this petition for attorney fees for issuance of a new addendum initial decision addressing the reasonableness of the attorney fees requested by the appellant.6 ORDER ¶15We remand this matter to the Western Regional Office for further adjudication of the appellant’s petition for attorney fees consistent with this Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 6 Generally, when an appellant fails to prevail on any or all of the charges but prevails in penalty mitigation, the Board finds that he obtained only “partial or limited” relief. See Driscoll v. U.S. Postal Service , 116 M.S.P.R. 662, ¶ 28 (2011). In that situation, the Board may find that a downward adjustment of the fees requested is appropriate. Id., ¶¶ 27-29. Under the unusual circumstances present here, however, the penalty and merits issues are intertwined. The outcome arrived at by the administrative judge— reversal of the removal action—is the same result that the appellant would have obtained had he prevailed on the merits of the charge. Accordingly, we find that the fee request should not be reduced as a consequence of the removal being reversed due to mitigation of the penalty rather than because the charge was not sustained.8	Wong_WilsonSF-0752-17-0382-A-1_Remand_Order.pdf	2024-08-23	WILSON WONG v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-0752-17-0382-A-1, August 23, 2024	SF-0752-17-0382-A-1	NP
643	https://www.mspb.gov/decisions/nonprecedential/Malcolm_MarioDC-0432-15-1154-B-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARIO MALCOLM, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-0432-15-1154-B-1 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mario Malcolm , Silver Spring, Maryland, pro se. William Christopher Horrigan , Esquire, Alexandria, 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 remand initial decision, which affirmed the appellant’s performance-based removal. On petition for review, the appellant continues to challenge the agency’s assertion that his performance in the critical element of “Production” was not acceptable. Remand 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and 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 (RPFR) 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 for2 review.2 Therefore, we DENY the petition for review and AFFIRM the remand initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 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 2 The appellant submits with his petition for review records from a work product tracking application showing when work product was delivered and returned between him and his supervisor between October 2014 through May 2015. RPFR File, Tab 1 at 6-13. 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. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980). The record below closed on May 26, 2023. Remand File, Tab 6 at 2. The records submitted by the appellant are from October 2014 through May 2015 and would have been available at the time they were created. Thus, they are not new. The appellant has not explained why he was unable to submit these documents or raise the argument related to them below. In any event, the evidence is related to the appellant’s performance during and after the performance improvement plan (PIP), which is not the relevant time period of the issue on remand. Malcolm v. Department of Commerce, MSPB Docket No. DC-0432-15- 1154-I-1, Remand Order, ¶¶ 15-16 (Oct. 6, 2022) (remanding on the issue of whether the appellant’s performance was unacceptable prior to the implementation of a PIP). However, regardless of the time period, a printout from a work product tracking application showing when work product was transferred between the appellant and his supervisor does not show what work was completed in a manner that would count towards the “Production” critical element, which is the critical element at issue in this performance-based appeal. Malcolm v. Department of Commerce, MSPB Docket No. DC-0432-15-1154-I-1 Initial Appeal File, Tab 4 at 35-36. Accordingly, the documentation is not of sufficient weight to warrant an outcome different than that of the initial decision, and, thus, does not provide 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). 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 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this 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. Contact information for the courts of appeals can be 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	Malcolm_MarioDC-0432-15-1154-B-1_Final_Order.pdf	2024-08-22	MARIO MALCOLM v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-0432-15-1154-B-1, August 22, 2024	DC-0432-15-1154-B-1	NP
644	https://www.mspb.gov/decisions/nonprecedential/Skinner_MonaDE-0752-19-0208-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MONA SKINNER, Appellant, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Agency.DOCKET NUMBER DE-0752-19-0208-I-1 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mona Skinner , Surprise, Arizona, pro se. Moira McCarthy , Esquire, Phoenix, Arizona, 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 removal appeal for failure to prosecute. On petition for review, the appellant argues that she did not receive any information regarding her case until she received the initial decision, asserts that she encountered issues with 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). e-Appeal, and indicates that she suffers from a number of medical issues. 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. On review, the appellant asserts that she did not receive any information regarding her case until she received the initial decision dismissing her appeal for failure to prosecute. Petition for Review (PFR) File, Tab 5 at 4. She also asserts that she “attempted to log in to [her] account several times and was unsuccessful.” Id. Finally, the appellant notes that she suffers from severe migraines and recently underwent surgery. Id.; PFR File, Tab 2 at 1. The appellant filed her appeal electronically and elected to register as an e-filer during the adjudication of her initial appeal. See Initial Appeal File (IAF), Tab 1 at 2. E-filers consent to accept electronic service of Board documents. 5 C.F.R. § 1201.14(e)(1) (2019). 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) (2019). E-filers are also responsible for monitoring case activity at e-Appeal to ensure that they have received all case-related documents and for ensuring that email from mspb.gov is not blocked by filters. 5 C.F.R. § 1201.14(j)(2)-(3) (2019). As an e -filer, the appellant is2 deemed to have received the administrative judge’s orders scheduling and rescheduling the status conference and informing her that her appeal would be dismissed for failure to prosecute if she did not affirm her intention to continue pursuing her appeal, when they were electronically issued on April 18, 2019, May 7, 2019, and May 10, 2019, respectively. Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); see IAF, Tabs 3, 6-7. Regarding the appellant’s assertions that she had issues logging in to e -Appeal or that she did not receive notice of the Board’s filings, there is nothing in the record to suggest that she sought to contact the Board for assistance after her allegedly unsuccessful attempts. As such, we are not persuaded by her allegations regarding e-Appeal. Finally, the appellant has not provided sufficient support for her contention that her medical conditions affected her ability to timely respond to the administrative judge’s orders. The appellant did not offer any explanation as to how her medical conditions rendered her unable to participate in the proceedings below. PFR File, Tab 2 at 1, Tab 5 at 4. In the absence of such explanation, we do not find good cause for her failure to prosecute her appeal. Cf. Monley v. U.S. Postal Service, 74 M.S.P.R. 27, 29-30 n.2 (1997) (finding that the appellant showed good cause for his failure to comply with the administrative judge’s orders when he submitted a sworn statement and a doctor’s letter explaining how his medical condition hindered his ability to pursue his appeal). 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 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 review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although 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. 4 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 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 the5 EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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 of6 review within 60 days of the date of issuance of this decision. 5 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. 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	Skinner_MonaDE-0752-19-0208-I-1_Final_Order.pdf	2024-08-22	MONA SKINNER v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. DE-0752-19-0208-I-1, August 22, 2024	DE-0752-19-0208-I-1	NP
645	https://www.mspb.gov/decisions/nonprecedential/Bonojo_Mayowa_O_NY-0752-20-0056-I-3_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MAYOWA BONOJO, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER NY-0752-20-0056-I-3 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Lawrence Berger , Esquire, Glen Cove, New York, for the appellant. Luz Adriana Lopez , Esquire, and Regina Levy , Esquire, New York, New York, for the agency. Aarrin Golson , Esquire, Miami, Florida, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which mitigated the appellant’s removal to a reassignment to a non-law enforcement 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). officer position after sustaining charges of conduct unbecoming a law enforcement officer and lack of candor. On review, the appellant argues that the administrative judge erred in sustaining the charges and specifications for the conduct unbecoming and lack of candor charge, and in finding that the agency proved nexus for the conduct unbecoming charge. 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. 5 C.F.R. § 1201.113(b). On review, the appellant argues that the agency failed to establish that his off-duty behavior, i.e., biting his wife during an altercation, affected the agency’s mission in a “direct and obvious way,” noting that he had received outstanding and excellent performance ratings after the incident, and asserting that his conduct had no adverse impact on his work performance, his co-workers, or the mission of the agency.2 PFR File, Tab 1 at 7-8. While we agree with the 2 On review, the appellant claims that the deciding official stated that the appellant’s off-duty conduct had “no” adverse impact on the appellant’s work performance, co- workers, or mission of the agency. PFR File, Tab 1 at 7. Upon review of the deciding official’s testimony, we find this statement to be taken out of context. When asked whether the appellant’s conduct had an impact on his performance or the agency’s mission, the deciding official stated that it did not until the charges were sustained.2 administrative judge that the agency established nexus, we expand the analysis and provide a more detailed reasoning as to why the appellant’s off-duty misconduct has nexus to the efficiency of the service.3 An agency must prove that a nexus exists between the sustained charges of misconduct and either the employee’s ability to accomplish his duties satisfactorily or some other legitimate government interest, i.e., the efficiency of the service. Campbell v. Department of the Army , 123 M.S.P.R. 674, ¶ 24 (2016). The Board generally recognizes three independent means by which an agency may show a nexus linking an employee’s off-duty misconduct with the efficiency of the service: (1) a rebuttable presumption of nexus that may arise in “certain egregious circumstances” based on the nature and gravity of the misconduct; (2) a showing by preponderant evidence that the misconduct affects the employee’s or his co-workers job performance or management’s trust and confidence in the employee’s job performance; and (3) a showing by preponderant evidence that the misconduct interfered with or adversely affected the agency’s mission. Kruger v. Department of Justice , 32 M.S.P.R. 71, 74 (1987). The Board has consistently found that there is nexus between a law enforcement officer’s off-duty misconduct and the efficiency of the service. See, Hearing Recording (HR) (testimony of the deciding official). However, the deciding official also emphasized the seriousness of the conduct, the impact it had on the appellant’s trustworthiness and the agency’s ability to have confidence in him, and the importance of maintaining a high level of integrity and honesty at all times because the agency relies on public trust in order for the agency to successfully enforce the laws. Id. Thus, looking at the record as a whole, we do not believe the appellant’s characterization is a fair representation of the deciding official’s testimony. 3 The appellant only disputes the finding of nexus as it relates to the first charge, i.e., conduct unbecoming. PFR File, Tab 1 at 8. Regarding the second charge, the Board has consistently found that nexus exists between lack of candor and the efficiency of the service because the charge strikes at the very heart of the employer- employee relationship. Ludlum v. Department of Justice , 87 M.S.P.R. 56, ¶ 28 (2000), aff'd, 278 F.3d 1280 (Fed. Cir. 2002); see Chavez v. Small Business Administration , 121 M.S.P.R. 168, ¶ 7 (2014) (finding nexus between lack of candor charge and efficiency of the service); see also Smith v. Department of the Interior , 112 M.S.P.R. 173, ¶¶ 22-23 (2009) (same).3 e.g., Carlton v. Department of Justice , 95 M.S.P.R. 633, ¶¶ 2, 4-5 (2004); Royster v. Department of Justice , 58 M.S.P.R. 495, 499-500 (1993); Mojica-Otero v. Department of the Treasury , 30 M.S.P.R. 46, 50 (1986). The Board has explained that law enforcement officers have the “general duty and responsibility to uphold and enforce the law[.]” Austin v. Department of Justice , 11 M.S.P.R. 255, 259 (1982). With such a sensitive position, “it can hardly be challenged that an agency has the right to expect and hold its law enforcement personnel to a high standard of conduct.” Id. Thus, when law enforcement officers engage in off- duty misconduct, it is a “serious breach of conduct and . . . [has] a significant effect on [the officer’s] reputation for honesty and integrity, thereby a significant effect upon the efficiency of the service.” Id. Here, the appellant admits to biting his wife during a physical altercation. Hearing Recording (HR) (testimony of the appellant). As a trained law enforcement officer, it is reasonable to expect that the appellant not resort to such violence, and his failure to do so casts doubt upon his ability to perform his duties, which require him to have good judgment and strong decision-making skills in high stress, difficult situations. HR (testimony of the deciding official). Furthermore, as a result of his actions, the appellant was arrested and his second- line supervisor had to retrieve the appellant’s weapon and credentials from the local police station, thus involving agency officials in his off-duty conduct. HR (testimony of the appellant’s second-line supervisor). Therefore, we find that the appellant’s actions undermine his ability to perform his duties as a law enforcement officer and adversely impacted the mission of the agency, namely, the enforcement of laws. Thus, consistent with previous Board findings, we find that the appellant’s off-duty misconduct is antithetical to the appellant’s role as a law enforcement officer, and therefore has a significant impact on the efficiency of the service. See Royster, 58 M.S.P.R. 495, 499-500 (finding nexus between appellant’s off-duty conduct and the efficiency of the service when the appellant was a Corrections Officer found to4 have made several threatening and abusive phone calls to women); Mojica-Otero, 30 M.S.P.R. 46, 50 (finding nexus existed between off-duty shoplifting by a customs officer and efficiency of the service because of his position as a law enforcement officer); see also Carlton, 95 M.S.P.R. 633, ¶¶ 2, 4-5 (upholding the administrative judge’s finding of nexus involving off-duty conduct from a law enforcement officer stemming from a domestic altercation with his wife). Accordingly, we agree with the administrative judge’s conclusion that the agency established that nexus existed between the appellant’s off-duty misconduct and the efficiency of the service.4 ID at 10. Having reviewed the appellant’s remaining arguments on review, we see no basis for disturbing the administrative judge’s finding in the initial decision. 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 & Human Services , 33 M.S.P.R. 357, 359 (1987) (same) Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIGHTS5 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 4 The appellant also disputes the agency’s consideration of the arrest, stating that the arrest alone cannot support nexus or evidence of misconduct. PFR File, Tab 1 at 20. The arrest is not the only evidence of nexus or misconduct; we have considered the underlying actions by the appellant. Thus, we are unpersuaded by this argument. Similarly, the appellant states that a Giglio impairment is speculative, and there is no proof that a U.S. Attorney’s Office would consider the appellant Giglio impaired. Id. However, the appellant does not cite, nor do we find, any authority that requires a Giglio determination be made for the agency to consider a Giglio issue when deciding whether to discipline an appellant. 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 Although 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.6 The court of appeals must receive your petition for 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review 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 attheir 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	Bonojo_Mayowa_O_NY-0752-20-0056-I-3_Final_Order.pdf	2024-08-22	MAYOWA BONOJO v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-0752-20-0056-I-3, August 22, 2024	NY-0752-20-0056-I-3	NP
646	https://www.mspb.gov/decisions/nonprecedential/Dupree_Patrick_N_SF-315H-21-0036-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PATRICK N. DUPREE, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER SF-315H-21-0036-I-1 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Patrick N. Dupree , Jolon, California, pro se. Kristopher Motschenbacher and Bernard Lee Gotmer , Fort Hunter Liggett, 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 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). BACKGROUND The appellant was appointed to a competitive service position on November 10, 2019. Initial Appeal File (IAF), Tab 7 at 14-15. The Standard Form 50 (SF-50) executed upon the appellant’s hire notes that the “[a]ppointment is subject to completion of two year initial probationary period beginning 10-NOV-2019.” Id. at 14. The appellant was terminated approximately 11 months later, on October 19, 2020, allegedly because he “failed to demonstrate the professionalism necessary for continued employment,” including a “poor job attitude” and failing to comply with established leave-requesting procedures. IAF, Tab 1 at 7-10. The appellant filed an appeal challenging his termination during his probationary period. Id. at 3. On his appeal form, the appellant acknowledged that he had only 11 months of Government service and was serving a probationary period at the time of his termination. Id. at 1. The administrative judge issued an acknowledgment order notifying the appellant that the Board may not have jurisdiction over his appeal and instructing him to meet his jurisdictional burden by filing evidence or argument within 15 days. IAF, Tab 2 at 2-5. The2 appellant did not file a response. The administrative judge subsequently issued an initial decision dismissing the appellant’s appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously allege that he met the definition of an “employee” with Board appeal rights under 5 U.S.C. chapter 75. IAF, Tab 8, Initial Decision (ID). The appellant then filed a petition for review. Petition for Review (PFR) File, Tab 1. DISCUSSION OF ARGUMENTS ON REVIEW The Board’s jurisdiction is limited to those matters over which the Board has been given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An individual employed in a competitive service position may appeal an adverse action, such as a removal, to the Board only if he meets the definition of an “employee,” as defined by 5 U.S.C. § 7511(a). Claiborne v. Department of Veterans Affairs , 118 M.S.P.R. 491, ¶ 6 (2012). At the time of the appellant's appointment to his competitive- service position in November 2019, an individual appointed to a permanent competitive-service position in the Department of Defense (DOD) was subject to a 2-year probationary period and only qualified as an “employee” under 5 U.S.C. § 7511(a)(1)(A)(ii) (2016) and 10 U.S.C. § 1599e (2016) if he was not serving a probationary or trial period under an initial appointment, or if he had completed 2 years of current continuous service. See Bryant v. Department of the Army , 2022 MSPB 1, ¶ 8.2 We agree with the administrative judge’s finding that the appellant has failed to nonfrivolously allege that he was an “employee” with a statutory right to appeal his termination because he was serving a probationary period and had only 11 months of current continuous service. ID at 4-5. The appellant does not dispute this finding on review. PFR File, Tab 1. 2 In December 2021, Congress repealed 10 U.S.C. § 1599e and the 2-year probationary period for such DOD appointments. Bryant, 2022 MSPB 1, ¶ 8. However, this repeal was made effective December 31, 2022, and only applied to individuals appointed on or after that date. 10 U.S.C. § 1599e note; Bryant, 2022 MSPB 1, ¶ 8. The repeal of 10 U.S.C. § 1599e does not affect the outcome of this appeal.3 In his petition for review, the appellant disputes the merits of the underlying termination decision and submits a document entitled “Standard Operating Procedure,” as well as several character statements to counter the agency’s stated reasons for removing him. Id. at 3-18. Arguments and documents related to the merits of the underlying termination decision are not relevant to the question of whether the appellant meets the definition of “employee” that would confer Board jurisdiction over his appeal. The appellant also asserts that he was denied a fair opportunity to present witnesses, that he did not understand Board procedures, and that he “didn’t know [he] was representing [him]self.” Id. at 3-5. A party to an appeal may designate a representative of his choice by submitting a pleading to the administrative judge. 5 C.F.R. § 1201.31. The appellant did not designate a representative in this appeal. IAF, Tab 1 at 1. To the extent the appellant argues he was denied a hearing, and although he claims he did not understand Board procedures, we find that the administrative judge’s acknowledgment order put the appellant on notice of what he must allege to be entitled to a hearing, and he failed to file a response. IAF, Tab 2 at 2-5. Accordingly, we find that the administrative judge properly dismissed the appeal without a hearing because the appellant failed to nonfrivolously allege that the Board had jurisdiction over his appeal. See Gallucci v. Department of Veterans Affairs, 67 M.S.P.R. 360, 363-64 (1995) (stating that an administrative judge may dismiss an appeal for lack of jurisdiction, without a hearing, if the appellant has been placed on notice of what he must show or allege to establish jurisdiction or to obtain a jurisdictional hearing, and the appellant fails to make the required showing or allegations). For the foregoing reasons, we deny the petition for review and affirm the initial decision. 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	Dupree_Patrick_N_SF-315H-21-0036-I-1_Final_Order.pdf	2024-08-22	PATRICK N. DUPREE v. DEPARTMENT OF THE ARMY, MSPB Docket No. SF-315H-21-0036-I-1, August 22, 2024	SF-315H-21-0036-I-1	NP
647	https://www.mspb.gov/decisions/nonprecedential/Carter_Randy_O_AT-315I-23-0635-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RANDY ORAN CARTER, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER AT-315I-23-0635-I-1 DATE: August 22, 2024 THIS ORDER IS NONPRECEDENTIAL1 Randy Oran Carter , Ridgeland, South Carolina, pro se. John Errett Buis , Beaufort, South 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 his probationary termination 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 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 February 27, 2023, the agency appointed the appellant to the competitive-service position of GS-11 Supervisory Career Resource Manager, subject to a 1-year probationary period. Initial Appeal File (IAF), Tab 6 at 10. Effective July 19, 2023, the agency terminated his employment because of “conduct unbecoming a Supervisory Federal Employee.” Id. at 13-16. On August 8, 2023, the appellant filed a Board appeal challenging his termination. IAF, Tab 1 at 7, 12, 453. ¶3The administrative judge issued an acknowledgment order, which notified the appellant that the Board may not have jurisdiction over his appeal unless he made a nonfrivolous allegation that the agency terminated him based on partisan political reasons or marital status. IAF, Tab 2 at 4-5. She provided the parties with an opportunity to present evidence and argument regarding jurisdiction. Id. at 5. In the appellant’s response, he alleged that he was terminated due to his “marital status and conservative political views[, which] run counterintuitive [sic] to [his director’s] single life and liberal political views.” IAF, Tab 5 at 2. The agency responded to the acknowledgment order by arguing that the appeal should be dismissed for lack of jurisdiction. IAF, Tab 6 at 4-8. ¶4On November 27, 2023, the administrative judge issued an order observing that the appellant might be raising a claim of reprisal for protected whistleblowing disclosures or activity. IAF, Tab 8 at 1. She set forth the appellant’s burden of establishing jurisdiction over an individual right of action (IRA) appeal and provided him with an opportunity to present evidence and argument establishing IRA jurisdiction. Id. at 2. The administrative judge served the order on the parties electronically, as both parties had registered as e-filers at the time the order was issued. Id. at 4. The appellant did not file a response to the November 27, 2023 order. ¶5On January 9, 2024, the administrative judge issued an initial decision, which dismissed the appeal for lack of Board jurisdiction. IAF, Tab 9, Initial2 Decision (ID) at 2, 6. She reasoned that the parties did not dispute that the appellant lacked chapter 75 adverse action appeal rights. ID at 3-4. She further found that the appellant failed to make a nonfrivolous allegation that his probationary termination was based on partisan political reasons or marital status. ID at 4-6. Accordingly, the administrative judge dismissed the appeal for lack of jurisdiction without holding the appellant’s requested hearing. ID at 1; IAF, Tab 1 at 2. ¶6The administrative judge observed in the initial decision that the appellant had not responded to her order regarding whistleblower reprisal; however, she did not make any findings regarding this claim. ID at 6 n.2. She also indicated that the appellant alleged that he was terminated in reprisal for asserting another employee’s rights under the Uniformed Services Employment and Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C. §§ 4301-4335) (USERRA) and advised him that he could file a separate USERRA appeal. Id. ¶7The appellant has filed a timely petition for review. Petition for Review (PFR) File, Tab 1 at 14. He reasserts claims of reprisal for whistleblowing and for defending another employee’s USERRA rights. Id. at 10-12. He also argues that he experienced technical issues in accessing the judge’s order in the Board’s e-Appeal system, for which he sought technical assistance, and that his inability to access e-Appeal prevented him from responding to the administrative judge’s November 27, 2023 order regarding whistleblower reprisal. Id. at 5-6. The agency has filed a response. PFR File, Tab 3.3 DISCUSSION OF ARGUMENTS ON REVIEW ¶8The issue before us is whether we have jurisdiction over this appeal. The Board does not have jurisdiction over all matters involving a Federal employee that are allegedly unfair or incorrect. Weyman v. Department of Justice , 58 M.S.P.R. 509, 512 (1993). Rather, the Board only has the jurisdiction that pertinent statutes and regulations provide it. Id. ¶9An appellant has the burden of proving Board jurisdiction. 5 C.F.R. §§ 1201.56(b)(2)(i)(A), .57(b)-(c)(1). He must receive explicit information on what is required to do so. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985). If an administrative judge has not advised an appellant of his burden of establishing jurisdiction, the appeal generally must be remanded to allow the parties to submit evidence and argument regarding the jurisdictional issue. Hudson v. Department of Veterans Affairs , 104 M.S.P.R. 283, ¶ 8 (2006). Nevertheless, an administrative judge’s failure to provide an appellant with proper jurisdictional notice can be cured if the agency’s pleadings contain the notice that was lacking in the administrative judge’s orders or if the initial decision itself puts the appellant on notice of what he must do to establish jurisdiction, thus affording him the opportunity to meet his jurisdictional burden in the petition for review. Mapstone v. Department of the Interior , 106 M.S.P.R. 691, ¶ 9 (2007). ¶10Here, the administrative judge did not advise the appellant of how to establish jurisdiction over his termination under chapter 75 in either of her two jurisdictional orders. IAF, Tab 2 at 4-5, Tab 8 at 2. However, her error was cured by the initial decision, in which she provided the definition of a competitive service appointee with the right to appeal his removal to the Board under chapter 75. ID at 3. An individual in the competitive service who, like the appellant, is serving an initial probationary period and has not completed 1 year of current continuous service has no right to appeal to the Board under chapter 75. 5 U.S.C.4 §§ 7511(a)(1)(A), 7512(1), 7513(d); Starkey v. Department of Housing and Urban Development, 2024 MSPB 6, ¶ 16. On review, the parties do not dispute the administrative judge’s findings that the appellant was a competitive service appointee subject to the completion of a 1-year probationary period and that he was terminated before his 1-year anniversary. ID at 3-4; IAF, Tab 1 at 2-3, Tab 6 at 10, 16. Therefore, we discern no basis to disturb the administrative judge’s finding that the Board lacks chapter 75 jurisdiction over the appellant’s termination. ¶11Under certain limited circumstances, a probationary competitive service appointee who is terminated during the first year of his initial probationary period may have a regulatory right of appeal under 5 C.F.R. § 315.806.2 Starkey, 2024 MSPB 6, ¶ 16. As relevant here, he “may appeal . . . a termination not required by statute which he . . . alleges was based on partisan political reasons or marital status.” Id. (quoting 5 C.F.R. § 315.806(b)). To establish Board jurisdiction under this provision, the appellant must prove by preponderant evidence that his termination was, in fact, based on partisan political reasons or marital status. Id. An appellant has the right to a hearing on the jurisdictional issue only if he first makes a nonfrivolous allegation of jurisdiction, i.e., allegations of fact that, if proven, would establish that his termination was based on partisan political reasons or marital status. Id., ¶ 16 n.4. On review, the parties do not disagree with the administrative judge that the appellant’s factual allegations that his manager’s expressed views in favor of diversity and Pride Month, her divorced status and alleged feelings about her divorce, and the fact 2 In her acknowledgment order, the administrative judge mistakenly cited 5 C.F.R. § 315.908 as the basis of the Board’s jurisdiction over this type of claim. IAF, Tab 2 at 4. Section 315.908 concerns the Board’s jurisdiction over the return of a previously promoted competitive service employee to his prior position for failure to satisfactorily complete a supervisory probationary period. Burton v. Department of the Air Force , 118 M.S.P.R. 210, ¶ 7 (2012 ). That provision does not apply here. To the extent that the administrative judge’s citation to the incorrect regulation may have caused the parties confusion below, any such confusion was cured by the initial decision, which correctly cited to 5 C.F.R. § 315.806. ID at 4.5 that the appellant was married and had more “conservative views” were insufficient to raise a nonfrivolous allegation of discrimination based on marital status or partisan politics in violation of 5 C.F.R. § 315.806(b). ID at 4-6. We discern no error in these findings.3 ¶12We turn next to the appellant’s claim of whistleblower reprisal. A probationary termination is a personnel action over which the Board may have IRA jurisdiction. See 5 U.S.C. § 2302(a)(2)(A)(iii) (defining “personnel action” for purposes of an IRA appeal as including a “disciplinary or corrective action”); Scalera v. Department of the Navy , 102 M.S.P.R. 43, ¶ 15 (2006) (finding that a probationary termination constitutes a personnel action under the Whistleblower Protection Act). The appellant realleges on review that his termination was retaliation for, among other matters, refusing the agency’s unlawful order that he and the other two members of a selection panel interview unqualified candidates after they had already chosen a candidate for the vacancy in question. PFR File, Tab 1 at 11; IAF, Tab 1 at 16-17, 30. ¶13Although he had already created an account in the Board’s e-Appeal system when the administrative judge issued her November 27, 2023 order regarding whistleblower reprisal, and the order was served electronically on the parties, the appellant was unable to access e-Appeal at that time.4 IAF, Tab 8; see also 5 C.F.R. § 1201.14(e)(2) (providing that a party who registers as an e-filer 3 On review, the appellant reraises claims under Title VII of race discrimination and retaliation for protected activity and realleges that the agency made harmful errors or violated his right to due process in connection with his termination. PFR File, Tab 1 at 2-4, 6-12; IAF, Tab 1 at 15-16, 30, 33, 35-36, Tab 7 at 4-7. We discern no error in the administrative judge’s determination that the Board lacks jurisdiction over such claims because the appellant did not establish jurisdiction over an otherwise appealable action. ID at 6; see Penna v. U.S. Postal Service , 118 M.S.P.R. 355, ¶ 13 (2012 ) (finding that, in the absence of an otherwise appealable action, the Board lacks jurisdiction over claims of harmful error and prohibited personnel practices, including discrimination claims); Moore v. Department of State , 15 M.S.P.R. 488, 489-90 (1983 ) (stating that neither an allegation of a prohibited personnel practice nor a violation of constitutional rights standing alone will confer jurisdiction in the absence of an otherwise appealable action), aff’d, 765 F.2d 159 (Fed. Cir. 1985) (Table). Therefore, we have not addressed these claims further.6 consents to accept electronic service of pleadings filed by other e-filers and documents issued by the Board). After the administrative judge issued her initial decision, the appellant gained access to his e-Appeal account, and therefore could have responded to the order on review. However, he has not done so. Nonetheless, given his difficulty with the e-Appeal system, his pro se status, and the fact that the administrative judge did not make a determination as to whether the appellant met his jurisdictional burden, the appellant may be confused regarding his obligation to establish jurisdiction over his whistleblower reprisal claim. ID at 6 n.2. ¶14Further, the administrative judge’s order regarding the Board’s IRA jurisdiction was incomplete. A Board order should be “reasonably calculated to apprise [an appellant] of what was required” to establish jurisdiction. See Burgess, 758 F.2d at 643-44 (concluding that a Board’s order was not “reasonably calculated to apprise [the petitioner] of what was required to obtain a hearing” on the issue of jurisdiction over his alleged involuntary resignation); King v. Department of Veterans Affairs , 105 M.S.P.R. 21, ¶ 10 (2007) (observing that jurisdiction in an IRA appeal is determined based on the written record). She correctly stated that the Board has jurisdiction if the appellant has exhausted his administrative remedies before the Office of Special Counsel (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 under 5 U.S.C. § 2302(a)(2)(A). IAF, Tab 8 at 2. This statement of law is correct. Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). However, the administrative judge did not explain, for example, how the appellant could prove exhaustion or define what constitutes 4 We find that the appellant exercised due diligence in seeking technical support from the Board for the period he was unable to access his e-Appeal account and view the administrative judge’s order. PFR, Tab 1 at 5-6. 7 a protected disclosure or activity. E.g., Cooper v. Department of Veterans Affairs, 2023 MSPB 24, ¶ 14 (defining what constitutes a protected disclosure for purposes of an IRA appeal); Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11 & n.7 (discussing the types of submissions that might be sufficient to prove exhaustion by preponderant evidence). On remand, the administrative judge should provide explicit information to the parties regarding how the appellant may establish jurisdiction over an IRA appeal. ¶15Finally, we turn to the appellant’s claim that the agency violated USERRA. The appellant invoked USERRA below, and again cites the statute on review. IAF, Tab 1 at 39, Tab 5 at 3, Tab 7 at 6; PFR File, Tab 1 at 11. He alleges that he was retaliated against for asserting another employee’s USERRA rights. PFR File, Tab 1 at 10-12. Individuals like the appellant who have not completed 1 year of current continuous service in the same or similar positions qualify as “persons” under USERRA, and thus are not excluded from filing appeals under the provisions of that statute. Henderson v. U.S. Postal Service , 95 M.S.P.R. 454, ¶ 6 (2004). An administrative judge may dismiss a USERRA appeal only if the appellant was placed on specific notice of what he needed to show or allege to establish Board jurisdiction over his USERRA claim, and he failed to make the requisite showing or allegations. Goldberg v. Department of Homeland Security , 99 M.S.P.R. 660, ¶ 5 (2005) (citing, along with another case, Burgess, 758 F.2d at 643-44). Here, the administrative judge never advised the appellant of what he must do to establish jurisdiction over a USERRA claim. Instead, she stated in the initial decision that the appellant could file a separate USERRA appeal if he wished. ID at 6 n.2. Because the appellant was never apprised of his rights and burdens under USERRA, remand is appropriate. Walker v. Department of Health and Human Services , 99 M.S.P.R. 367, ¶ 10 (2005). ¶16To establish jurisdiction over a USERRA retaliation claim, an appellant must make nonfrivolous allegations that (1) he engaged in activity protected under 38 U.S.C. § 4311(b), (2) the agency discriminated in employment or took8 an adverse employment action against him, and (3) his protected activity was a motivating factor in the agency’s action. Kitlinski v. Department of Justice , 2023 MSPB 13, ¶ 8. The appellant alleged that while at the agency, at least two different supervisors ordered him to violate USERRA. Specifically, he alleged that they told him to “deny” a subordinate’s military orders because she “volunteered” for her military service and her “team was ‘short staffed,’” which he argues was illegal. IAF, Tab 1 at 39 (emphasis omitted). Although not entirely clear, he suggested that the agency took adverse employment actions against him as a result. IAF, Tab 1 at 30, 39, Tab 7 at 5-6; PFR File, Tab 1 at 11-12. On remand, the administrative judge should advise the parties regarding how to establish jurisdiction over a USERRA claim and provide them with an opportunity to respond. ¶17The appellant requests that the Board compel the agency to respond to his discovery requests. PFR File, Tab 1 at 2, 4, 6, 13. Because he did not exercise due diligence by filing a motion to compel during the proceedings below, we deny his request. IAF, Tab 2 at 6-7; see Boston v. Department of the Army , 122 M.S.P.R. 577, ¶ 12 (2015) (declining to grant review based on an appellant’s assertion that the agency did not respond to his interrogatories when the administrative judge advised the appellant of Board’s regulations regarding discovery and the appellant did not file a motion to compel below). The appellant also contends that the administrative judge did not read and consider his entire initial appeal because she “fail[ed] to address the Appellant’s documented concerns in her Initial Decision.” PFR File, Tab 1 at 2. However, an administrative judge’s 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). In any event, as discussed in this order, the appellant will have an opportunity on remand to address the relevant jurisdictional issues. In doing so, he may refer to evidence that is already in the9 record as well as submit new evidence. In addition, despite our ruling above and given that the appellant did not receive adequate notice below as to his jurisdictional burdens, the appellant may seek to conduct discovery anew, including on the jurisdictional issues, at the administrative judge’s discretion. Parker v. Department of Housing & Urban Development , 106 M.S.P.R. 329, ¶ 9 (2007) (an appellant may request discovery of relevant materials to assist him in meeting his burden of establishing the Board’s jurisdiction). ¶18As set forth above, we remand this appeal for the administrative judge to provide the appellant with notice of how to establish jurisdiction over his claims of reprisal for whistleblowing and for asserting another employee’s rights under USERRA. If the administrative judge determines that the appellant establishes jurisdiction over either or both claims on remand, he is entitled to his requested hearing on the merits. IAF, Tab 1 at 2, Tab 5 at 5; see Salerno, 123 M.S.P.R. 230, ¶ 5 (providing that once an appellant establishes jurisdiction over his IRA appeal, he is entitled to a hearing on the merits of his claim); Gossage v. Department of Labor , 118 M.S.P.R. 455, ¶ 10 (2012) (stating that once an appellant has established Board jurisdiction over his USERRA claim, he has an unconditional right to a hearing on the merits). After closing the record on remand, the administrative judge must issue a remand initial decision. Assuming that the parties present no additional evidence or argument on remand establishing jurisdiction over the appellant’s termination under chapter 75 or 5 C.F.R. § 315.806, the administrative judge may incorporate into her remand initial decision her prior findings that the Board lacks jurisdiction under these provisions. 10 ORDER ¶19For 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.11	Carter_Randy_O_AT-315I-23-0635-I-1_Remand_Order.pdf	2024-08-22	RANDY ORAN CARTER v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-315I-23-0635-I-1, August 22, 2024	AT-315I-23-0635-I-1	NP
648	https://www.mspb.gov/decisions/nonprecedential/Patterson_TylerCH-0752-21-0333-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TYLER PATTERSON, Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency.DOCKET NUMBER CH-0752-21-0333-I-2 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ricardo J.A. Pitts-Wiley , Esquire, Washington, D.C., for the appellant. Dolores Francis and Eugenia Jackson , 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 a petition for review of the initial decision, which sustained his chapter 75 demotion from a GS-15 Supervisory Compliance Investigator with the agency’s Pipeline and Hazardous Materials Safety Administration (PHMSA), to a GS-14 Senior Advisor. Patterson v. Department 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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 Transportation , MSPB Docket. No. CH-0752-21-0333-I-1, Initial Appeal File (IAF), Tab 6 at 14, 18-21. On petition for review, the appellant challenges the administrative judge’s findings concerning the agency’s charges, his affirmative defenses of harmful procedural error, due process violations, and equal employment opportunity (EEO) retaliation, and the reasonableness of the agency’s penalty. Petition for Review (PFR) File, Tab 1 at 5-22.2 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. Except as 2 In support of his claim of harmful procedural error, the appellant presents for the first time on review a PHMSA policy, which he alleges the agency violated. PFR File, Tab 1 at 5-7, 25-37. The Board generally will not consider evidence or argument 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 Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 34 n. 10; Spivey v. Department of Justice, 2022 MSPB 24, ¶ 15. Here, the appellant has not shown that the policy was unavailable below despite his due diligence. In addition, 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, 2022 MSPB 24, ¶ 15; Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980 ). Assuming arguendo that the agency violated the policy in conducting its investigation, the appellant has not proven that such error was harmful, i.e., that it was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. See 5 C.F.R. § 1201.4(r). 2 expressly MODIFIED to find that the appellant engaged in protected activity, we AFFIRM the initial decision. ¶2The administrative judge identified the following two allegedly protected activities as the bases for the appellant’s EEO retaliation claim: (1) he was identified as a responsible management official (RMO) in an EEO complaint; and (2) he granted a subordinate’s reasonable accommodation request for full-time telework. Patterson v. Department of Transportation , MSPB Docket. No. CH-0752-21-0333-I-2, Appeal File (I-2 AF), Tab 10, Initial Decision (ID) at 37; IAF, Tab 22 at 84-86, Tab 23 at 100-03. The administrative judge found that neither the appellant’s status as an RMO nor as an individual who decided to grant a request for reasonable accommodation was protected EEO activity. ID at 38-39. ¶3However, concerning the first basis for his claim, the appellant argues that it was his EEO affidavit or testimony, completed as an RMO, and not his status as an RMO, that constituted protected EEO activity. PFR File, Tab 1 at 14. As the appellant raised this argument below, we will consider it on review. I-2 AF, Tab 6 at 16-17, 40-41; IAF, Tab 20 at 18-19. The participation clause of Title VII’s anti-retaliation provision protects participation in Title VII proceedings without restriction and does not turn on the substance of the testimony. 42 U.S.C. § 2000e–3(a); Glover v. South Carolina Law Enforcement Division , 170 F.3d 411, 414 (4th Cir. 1999); Merritt v. Dillard Paper Co. , 120 F.3d 1181, 1185 (11th Cir. 1997) (finding that the protections of the participation clause applied to deposition testimony reluctantly given). The prohibited personnel practice at 5 U.S.C. § 2302(b)(1)(A) incorporates this prohibition. See Marable v. Department of the Army , 52 M.S.P.R. 622, 629 (1992). Thus, we modify the initial decision by finding that the appellant engaged in protected EEO activity by completing an affidavit or testifying in Title VII proceedings as an RMO. Hearing Transcript – Day 4 (HT-4) at 132-33 (testimony of the appellant).3 ¶4However, to prove an affirmative defense of retaliation for EEO activity protected under Title VII, an appellant must show that the prohibited consideration was at least a motivating factor in the agency’s action. Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 21-22, 30. An appellant may prove a claim of retaliation under Title VII through direct evidence, circumstantial evidence, or some combination of the two. Id., ¶ 24. Here, there is no indication that the allegedly retaliatory agency officials were motivated to discipline the appellant because of his protected EEO activity. ¶5The appellant points to a note by the proposing official, in a removal action request to Employee Relations/Labor Relations, that the appellant’s “past history” included “verbal counseling due to [the] settlement of the [] EEO case” in August 2020. IAF, Tab 23 at 190. We disagree with the appellant that this statement evidences a retaliatory motive prohibited by Title VII, because it most likely relates to the appellant’s underlying conduct that precipitated the EEO complaint rather than the protected EEO activity. Hearing Transcript – Day 1 (HT-1) at 194 (testimony of the proposing official). The U.S. Court of Appeals for the Eleventh Circuit has explained that the anti-retaliation provision in Title VII does not prohibit an employer from imposing discipline on an employee who discriminates against other employees, either because justice demands it, or to minimize future liability. Merritt, 120 F.3d 1181, 1188-89. The appellant also alleges, however, that the proposing official informed him during the verbal counseling session that one of his answers to a question from the EEO investigator harmed the agency’s defense, forcing the agency to reach a settlement agreement, and that his second-level supervisor/the deciding official felt that the appellant was responsible for the response at issue. IAF, Tab 20 at 19; I-2 AF, Tab 6 at 16, 41. While such a statement might suggest retaliatory animus based on protected EEO activity, the appellant presents insufficient evidence to show that the proposing official made this statement as alleged. See HT-1 at 194 (testimony of the proposing official that he told the appellant, “whatever you did that brought this4 on, don’t do it again,” concerning the accusations in the EEO complaint); HT-4 at 94, 96-97 (testimony of the appellant that the proposing official advised him not to have so many complaints in the region, which he interpreted as “some vague, general, you know, make people happy, directive,” and that he did not remember any reference to the specific EEO complaint in the verbal counseling session). Furthermore, the deciding official testified that he did not recall if the proposing official counseled the appellant regarding the settlement, and he did not hold the appellant responsible because “the agency settles for any number of reasons.” HT-1 at 98 (testimony of the deciding official). ¶6Thus, we find that the appellant has not shown that any official involved in the demotion decision considered any matter prohibited under Title VII. We have considered the timing of the verbal counseling session in August 2020—just one month prior to the initiation of the agency’s investigation into alleged misconduct by the appellant—but do not find the timing to be suspicious under the circumstances of this case. HT-1 at 180 (testimony of the proposing official). The agency’s investigation was precipitated by a report from the appellant’s subordinate that several of her subordinates had been complaining about the appellant’s behavior for some time, which is entirely consistent with the subject of the verbal counseling session and does not suggest any new animus. HT-1 at 161-63 (testimony of the subordinate), 180 (testimony of the proposing official). We conclude that the appellant has not shown that his protected EEO activity was a motivating factor in the agency’s demotion action. See Pridgen, 2022 MSPB 31, ¶¶ 21-22, 30. ¶7Concerning the second basis for his retaliation claim, the appellant reasserts that he engaged in protected activity by granting a subordinate’s reasonable accommodation request. PFR File, Tab 1 at 14; I-2 AF, Tab 6 at 16, 30-35. We assume without deciding that the appellant’s action of approving his subordinate’s reasonable accommodation request contrary to the instruction of his supervisors was protected activity under the Rehabilitation Act, and that retaliation for such5 would be a prohibited personnel practice. 42 U.S.C. § 12203(a)-(b); 29 U.S.C. § 791(f); 5 U.S.C. § 2302(b)(1)(D).3 To prevail in a claim of retaliation for engaging in activity protected by the Rehabilitation Act, the appellant must show that retaliation was a “but-for” cause of the agency’s action. Pridgen, 2022 MSPB 31, ¶¶ 44-47; Desjardin v. U.S. Postal Service , 2023 MSPB 6, ¶ 33. ¶8Here, the appellant has proven, through the testimony of the proposing official, that he was legally entitled to approve the reasonable accommodation request of his subordinate for full-time telework under agency policy. Hearing Transcript – Day 2 (HT-2) at 8 (testimony of the proposing official). Furthermore, he has proven that the proposing official believed that his lawful approval of the reasonable accommodation request was nonetheless deceitful, underhanded, and inappropriate, because the agency had recently denied this employee’s request for remote work and had directed her to return to her duty station, and the appellant did not discuss his subsequent approval of her request for full-time telework with his supervisors . IAF, Tab 22 at 63-64; HT-2 at 6-19 (testimony of the proposing official). According to the proposing official, the Administrator of PHMSA was also concerned about the appellant’s actions that appeared to be unilateral. HT-2 at 18 (testimony of the proposing official). ¶9However, we are not persuaded that this evidence is sufficient to establish that the agency would not have demoted the appellant absent his approval of the reasonable accommodation request. See Pridgen, 2022 MSPB 31, ¶¶ 44-47. The administrative judge found that the appellant did not establish that the proposing official had animus toward the appellant, and we agree. ID at 42. The proposing official testified that he advocated the appellant’s potential for improvement in response to the concerns of the Administrator, changed the approval process for 3 The Rehabilitation Act incorporates by reference the standards of the Americans with Disabilities Act, as amended by the Americans with Disabilities Act Amendments Act of 2008, and the Board applies those standards to determine whether there has been a Rehabilitation Act violation. See 29 U.S.C. § 791(f); Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 13 n.3 (2014 ). The Rehabilitation Act is incorporated under the prohibited personnel practice at 5 U.S.C. § 2302(b)(1)(D).6 reasonable accommodation and telework requests, and “moved on” from the reasonable accommodation issue. HT-2 at 12, 14-19 (testimony of the proposing official); IAF, Tab 22 at 118. Furthermore, we find no evidence of a suspicious timing of events: the parties do not appear to dispute that the proposing official became aware of the reasonable accommodation approval in October 2019 but did not initiate the investigation into the appellant’s misconduct until September 2020, when ongoing complaints from the appellant’s subordinates surfaced. HT-1 at 180; HT-2 at 14-15 (testimony of the proposing official); IAF, Tab 22 at 84-86, 118. As the appellant has not presented any other direct or circumstantial evidence of retaliation by any agency official, we affirm the administrative judge’s findings, as modified, that the appellant is not entitled to relief for his Title VII or Rehabilitation Act -based retaliation claims. 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.7 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 9 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 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	Patterson_TylerCH-0752-21-0333-I-2_Final_Order.pdf	2024-08-22	TYLER PATTERSON v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. CH-0752-21-0333-I-2, August 22, 2024	CH-0752-21-0333-I-2	NP
649	https://www.mspb.gov/decisions/nonprecedential/Gutterman_Sean_J_DE-315H-21-0056-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SEAN J. GUTTERMAN, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER DE-315H-21-0056-I-1 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sean J. Gutterman , Denver, Colorado, pro se. Varvara E. Marmarinou , 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 dismissed his probationary termination appeal for lack of jurisdiction.2 On 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 Prior to the filing of the instant appeal, the appellant had filed another appeal challenging his termination. See Gutterman v. Department of the Treasury , MSPB Docket No. DE-315H-20-0376-I-1. The administrative judge assigned to that case dismissed the appeal for lack of jurisdiction. 0376 AF, Tab 6, Initial Decision. That decision became the Board’s final decision on the matter on October 21, 2020, when petition for review, the appellant argues the merits of his termination. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required 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 was not an “employee” under 5 U.S.C. § 7511(a)(1)(A), and that he, therefore, did not have chapter 75 appeal rights. Initial Appeal File (IAF), Tab 11, Initial Decision (ID) at 4. She also correctly found that the appellant did not allege any of the scenarios set forth in 5 C.F.R. §§ 315.805 and 315.806 that provide for a regulatory right to appeal. Id. Accordingly, she appropriately dismissed the appellant’s appeal for lack of jurisdiction. ID at 5. The appellant’s argument on review concerning the merits of his termination does not provide a basis to disturb the initial decision. See Sapla v. Department of the Navy , 118 M.S.P.R. 551, ¶ 7 (2012) (holding that an appellant’s arguments concerning the merits of her appeal were not relevant to the question of jurisdiction); Rivera v. Department of the Navy, 114 M.S.P.R. 52, ¶ 7 (2010) (same) neither party filed a petition for review. Id. at 7; see 5 C.F.R. § 1201.113 (explaining that an initial decision will become the Board’s final decision 35 days after issuance when no petition for review is filed).2 The appellant has also submitted as a supplement to his petition for review documentary evidence regarding three separate periods of hospitalization—one in August 2020, one in September and October 2020, and one in October and November 2020. Petition for Review (PFR) File, Tab 3. These documents do not appear to have been submitted into the record below. IAF, Tabs 1, 9-10. 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. Postal Service , 3 M.S.P.R. 211, 213 -14 (1980). Here, the documents all appear to have been issued by, at the latest, November 12, 2020. PFR File, Tab 3. The appellant did not file the instant appeal until a week later, on November 19, 2020. IAF, Tab 1. Thus, the documents submitted on review were available below before the record closed, and the appellant has not explained why he was unable to submit them then. PFR File, Tabs 3, 6. Moreover, he has not explained how the documents are relevant to the question of jurisdiction or are otherwise of sufficient weight to warrant an outcome different than that of the initial decision, and thus, they do not provide 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). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.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	Gutterman_Sean_J_DE-315H-21-0056-I-1_Final_Order.pdf	2024-08-22	SEAN J. GUTTERMAN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DE-315H-21-0056-I-1, August 22, 2024	DE-315H-21-0056-I-1	NP
650	https://www.mspb.gov/decisions/nonprecedential/Witten_Michael_J_DC-0752-20-0851-C-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MICHAEL J. WITTEN, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER DC-0752-20-0851-C-1 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Michael J. Witten , Upper Marlboro, Maryland, pro se. Byron D. Smalley , Esquire, and Eleanor F. Miller , 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 petition for enforcement of the parties’ settlement agreement as moot. On petition for review, the appellant reiterates his argument from below that, to honor the terms of the settlement agreement, the agency should have 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). coded his Standard Form 50 to reflect that he was removed due to a work-related disability. Petition for Review (PFR) File, Tabs 1-2, 19.2 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 2 While the appellant’s petition for review was pending before the Board, he requested to withdraw his petition for review. PFR File, Tab 10. The Office of the Clerk of the Board acknowledged this request and ordered him to submit a pleading showing that his request to withdraw was knowing and voluntary. PFR File, Tab 11 at 2. The appellant subsequently informed the Board that he no longer wished to withdraw his appeal and that he wanted the Board to “issue a decision on his petition.” PFR File, Tab 17. Accordingly, we have adjudicated the appellant’s petition for review. 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at3 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,4 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.4 The court of appeals must receive your petition for 4 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,5 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 132 Stat. 1510. 6 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Witten_Michael_J_DC-0752-20-0851-C-1_Final_Order.pdf	2024-08-22	MICHAEL J. WITTEN v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DC-0752-20-0851-C-1, August 22, 2024	DC-0752-20-0851-C-1	NP
651	https://www.mspb.gov/decisions/nonprecedential/Lucas_Cambra_L_SF-0845-13-0413-C-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CAMBRA L. LUCAS, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER SF-0845-13-0413-C-1 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Matthew G. Lucas , Ripon, California, for the appellant. 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 ¶1The appellant has filed a petition for review of the compliance initial decision, which denied the appellant’s petition for enforcement. On petition for review, the appellant argues that the administrative judge did not properly consider her argument regarding a statute of limitations and alleged due process violations by the Office of Personnel Management (OPM) and the Board. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 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 compliance initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).3 2 In the appellant’s compliance petition for review, she argues that OPM’s attempt to collect an overpayment is barred by the statute of limitations on administrative offset set forth in a prior version of 31 U.S.C. § 3716(e). Compliance Petition for Review (CPFR) File, Tab 1 at 5-11. Subsection 3716(e)(1) was amended in 2008 to eliminate the 10-year statute of limitations period. See Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, 122 Stat. 1651 (June 18, 2008). In amending this provision, Congress explicitly stated that the amendment “shall apply to any debt outstanding on or after the date of the enactment of this Act.” See 31 U.S.C. § 3716(b)(1) (2008), 122 Stat. 1651, 2245. The appellant’s overpayment debt began to accrue in 2007 and was, therefore, in existence at the time of the 2008 amendment to 31 U.S.C. § 3716(e) (1). Lucas v. Office of Personnel Management , MSPB Docket No. SF-0845-13-0413-I- 1, Initial Appeal File (IAF), Tab 10 at 4. According to Congress’s express intent, the amendment eliminating the statute of limitations on collection of the overpayment applies to the appellant. Further, the appellant has not adequately explained why any alleged delay on the part of OPM in enacting implementing regulations would impact the application of the 2008 statutory amendment. CPFR File, Tab 1 at 7-8. In any event, even if the 10-year statute of limitations did apply to the appellant, the debt began to accrue in 2007, and OPM began its attempt to recover the overpayment as early as July 2010. IAF, Tab 10 at 14-17. Thus, OPM sought recovery of the overpayment within 3 years of its existence, well before the running of a 10 -year statute of limitations. Based on the foregoing, the appellant has not shown that OPM is barred from recovering the overpayment. 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. 3 Prior to the close of record on review, the appellant submitted a motion for leave to file additional information. CPFR File, Tab 5. In that motion, she explains that she wished to file a motion for OPM to “Cease and Desist” the overpayment collection. Id. at 4. Under 5 C.F.R. § 1201.114(a)(5), an appellant may only submit an additional pleading if she explains the nature and need for the pleading. As such, we must determine if the proffered filing is necessary. Normally, OPM will not commence collection until the administrative review process of 5 C.F.R. § 845.204 has been completed, i.e., until OPM has issued a final decision and the Board has acted on any appeal of that decision. Campbell v. Office of Personnel Management , 123 M.S.P.R. 240, ¶ 5 (2016); 5 C.F.R. § 845.205(d)(1). The merits of the overpayment have been litigated and are final. The instant matter before the Board concerns only the question of compliance and whether OPM complied with the Board’s February 2023 Remand Order. Therefore, the general principle set forth above does not apply. Given that our findings regarding the merits of the overpayment are final and cannot be changed pursuant to the law of the case, we find that the appellant has not shown that an additional pleading is necessary. Accordingly, the appellant’s motion is denied. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you4 receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. 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.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	Lucas_Cambra_L_SF-0845-13-0413-C-1_Final_Order.pdf	2024-08-22	CAMBRA L. LUCAS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0845-13-0413-C-1, August 22, 2024	SF-0845-13-0413-C-1	NP
652	https://www.mspb.gov/decisions/nonprecedential/Armstead_Tyrone_L_DA-0831-11-0437-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TYRONE L. ARMSTEAD, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DA-0831-11-0437-I-1 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tyrone L. Armstead , Cedar Hill, Texas, 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 affirmed the final decision of the Office of Personnel Management (OPM) reducing his retirement annuity under the Civil Service Retirement System (CSRS) by eliminating credit for his post-1956 military service. For the reasons 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 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 Effective June 3, 2005, the appellant retired under the CSRS from Federal civilian service with the U.S. Postal Service. Initial Appeal File (IAF), Tab 4 at 1, 17, 25, 29. On April 19, 2010, OPM issued a final decision recomputing his annuity to eliminate credit for his post-1956 military service. Id. at 7-8. The appellant timely appealed OPM’s final decision and an administrative judge issued an initial decision affirming OPM’s decision. IAF, Tab 9, Initial Decision (ID) at 1, 7. The initial decision included instructions that it would become final on September 22, 2011, unless a petition for review was filed by that date. Id. at 7. In January 2021, the appellant filed the petition for review currently before us. Petition for Review (PFR) File, Tab 1. The Office of the Clerk of the Board issued an acknowledgment letter, advising the appellant that his petition for review was untimely filed and informing him that he must establish good cause for the untimely filing, to which he responded. PFR File, Tab 2 at 1-2, Tab 5 at 3-4. The agency responded to the appellant’s petition for review. PFR File, Tab 4. DISCUSSION OF ARGUMENTS ON REVIEW The Board’s regulations provide that a petition for review must be filed within 35 days 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). Here, the initial decision was issued on August 18, 2011, and sent to the appellant via U.S. mail the same day. ID at 1; IAF, Tab 10. The appellant has not alleged that he received the initial decision more than 5 days after the date of issuance, thus the deadline to file a petition for review was in September 2011. He filed his petition2 for review in January 2021; therefore, his petition for review is untimely by over 9 years. PFR File, Tab 1. The Board generally 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, 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). In his motion for the Board to accept his untimely filed petition for review, the appellant signed a statement, swearing under penalty of perjury that “[he] was so discusted [sic] at the time with the whole matter that [he] let the deadline catch up with [him].” PFR File, Tab 5 at 3. He also claimed, amongst other things, that he was dealing with the deaths of both his mother and wife, so “[he] just gave up.” Id. at 3-4. The Board has held that general references to a relative’s death do not provide a basis to waive the filing deadline. Keys v. Office of Personnel Management, 113 M.S.P.R. 173, ¶ 7 (2010). The appellant’s mother died in January 2009, over 2 years prior to the September 2011 filing deadline. PFR File, Tab 5 at 5. His wife died in January 2010, over a year before the filing deadline. Id. at 6. However, nothing in the record indicates how these events affected his ability to timely file his appeal. As such, his relatives’ deaths do not establish good cause for the untimely filing of the petition for review. The appellant also argues generally that he “was to [sic] confused and did not know what else to do.” Id. at 3. In order to establish good cause, an3 appellant’s confusion must relate to a specific ambiguity in either the instructions he received or in a Board procedure. Abney v. Office of Personnel Management , 89 M.S.P.R. 305, ¶ 6 (2001), aff’d, 41 F. App’x 421 (Fed. Cir. 2002). Here, the record shows, and the appellant does not dispute, that the initial decision provided him with the exact date on which it would become final unless a petition for review was filed and specific filing instructions. ID at 7-9. Thus, his general allegation that he was confused does not establish good cause for his untimely filing. Although the appellant is pro se, his filing delay of over 9 years is significant. See Brockman v. Department of Defense , 108 M.S.P.R. 490, ¶¶ 7-9 (2008) (finding that a 9-year delay in filing a petition for review was “significant,” and declining to excuse the untimeliness of the petition, even considering the appellant’s pro se status). In addition, the fact that the appellant is proceeding pro se does not justify waiving the filing deadline because there has been no showing that the appellant exercised due diligence or ordinary prudence in this case. See id. 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 reduction of the appellant’s annuity benefits. 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.4 appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this 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 representation5 for Merit Systems Protection Board appellants before the 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 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. 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	Armstead_Tyrone_L_DA-0831-11-0437-I-1_Final_Order.pdf	831-11-04	TYRONE L. ARMSTEAD v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-0831-11-0437-I-1, August 22, 2024	DA-0831-11-0437-I-1	NP
653	https://www.mspb.gov/decisions/nonprecedential/Gillins_Sabra_V_CH-0353-14-0337-C-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SABRA V. GILLINS, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER CH-0353-14-0337-C-1 DATE: August 22, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sidney M. Fulwood , Supply, North Carolina, for the appellant. Lori L. Markle , Esquire, St. Louis, Missouri, 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, which denied her petition for enforcement as moot regarding a proper search for vacant positions and restoration. On petition for review, the appellant argues that the agency does not believe that she is entitled to restoration, despite the Board’s order about the same. Compliance Petition for Review 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). at 2. She also asserts that much of the agency’s documentation regarding its search for vacant positions to which she could be restored as a partially recovered individual is in small print and difficult to read. Id. The appellant next argues that the agency was not operating in good faith when responding to the Board’s previous order to conduct a proper restoration search. Id. at 3. In addition, she argues that the agency never considered whether she could perform certain clerical work. Id. Finally, the appellant suggests that the agency’s documentary evidence and hearing testimony about its search for vacant positions to which she could be restored is not reliable and the administrative judge should not have found it credible. Id. at 4-11. 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 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 review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although 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.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 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	Gillins_Sabra_V_CH-0353-14-0337-C-1_Final_Order.pdf	2024-08-22	SABRA V. GILLINS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0353-14-0337-C-1, August 22, 2024	CH-0353-14-0337-C-1	NP
654	https://www.mspb.gov/decisions/nonprecedential/Garrett__Ronald__L_DA-0752-22-0417-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RONALD GARRETT, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER DA-0752-22-0417-I-2 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tamika Sykes , Esquire, Atlanta, Georgia, for the appellant. Marisa Williams , Esquire, Englewood, Colorado, for the appellant. Theresa M. Gegen , Esquire, and Bobbi Mihal , Esquire, St. Louis, Missouri, 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 demotion. On petition for review, the appellant argues that the administrative judge erred in deferring to the agency’s chosen penalty 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). demotion because the deciding official did not adequately consider certain mitigating factors. He disagrees with the administrative judge’s finding that he did not prove his affirmative defense of disability discrimination. 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 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 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If 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	Garrett__Ronald__L_DA-0752-22-0417-I-2_Final_Order.pdf	2024-08-21	RONALD GARRETT v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DA-0752-22-0417-I-2, August 21, 2024	DA-0752-22-0417-I-2	NP
655	https://www.mspb.gov/decisions/nonprecedential/Hill_ShannonCH-0845-20-0469-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SHANNON HILL, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER CH-0845-20-0469-I-1 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Shannon Hill , Warren, Michigan, pro se. Tynika Faison Johnson , 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 an Office of Personnel Management (OPM) final decision after OPM represented that it had rescinded its decision during the pendency of the 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 and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). Here, OPM asserted that it had rescinded the final decision and that it would reexamine the issue raised by the appellant after “further development with [the Social Security Administration].” Initial Appeal File, Tab 14 at 5. OPM also asserted that collection of the overpayment has been suspended until further notice. Id. The appellant did not dispute OPM’s assertions on review. If OPM completely rescinds a reconsideration decision, its rescission divests the Board of jurisdiction over the appeal in which that reconsideration decision is at issue, and the appeal must be dismissed. Smith v. Office of Personnel Management , 113 M.S.P.R. 259, ¶ 6 (2010). Thus, we agree with the administrative judge’s decision to dismiss the appeal for lack of jurisdiction. On review, the appellant requests that the Board correct two statements in the initial decision. Petition for Review File, Tab 1 at 2. We see no error in the two statements. Contrary to the appellant’s argument, the statement that her civil service annuity must be reduced due to her receipt of Social Security benefits is a description of OPM’s conclusion in the matter being appealed, not the appellant’s position in the appeal. Initial Decision (ID) at 1. Also, the appellant has not2 shown error in the administrative judge’s statement that neither party participated in the scheduled October 6, 2020 status conference, though the administrative judge acknowledged that she spoke with the appellant later that day. ID at 2; IAF, Tab 17 at 1, Tab 20 at 1, Tab 21 at 1. If the appellant is dissatisfied with a future final OPM decision, she may appeal it to the Board. See Smith, 113 M.S.P.R. 259, ¶ 8 . Any future appeal must be filed within the time limits set forth in the Board’s regulations. See id.; 5 C.F.R. § 1201.22(b)(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. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.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.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. 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	Hill_ShannonCH-0845-20-0469-I-1_Final_Order.pdf	2024-08-21	SHANNON HILL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0845-20-0469-I-1, August 21, 2024	CH-0845-20-0469-I-1	NP
656	https://www.mspb.gov/decisions/nonprecedential/Lastimozo_Filicismo_C_SF-0831-20-0136-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FILICISMO C. LASTIMOZO, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER SF-0831-20-0136-I-1 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Filicismo C. Lastimozo , La Union, Philippines, 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 deferred annuity denial appeal for lack of jurisdiction. On petition for review, the appellant reasserts his claim to the annuity. Generally, we grant petitions such as this one only in the following circumstances: the initial decision 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Lastimozo_Filicismo_C_SF-0831-20-0136-I-1_Final_Order.pdf	2024-08-21	FILICISMO C. LASTIMOZO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-20-0136-I-1, August 21, 2024	SF-0831-20-0136-I-1	NP
657	https://www.mspb.gov/decisions/nonprecedential/DiPiano_DominicAT-0731-23-0126-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DOMINIC DIPIANO, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-0731-23-0126-I-1 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Dominic DiPiano , Jacksonville, Florida, pro se. Tabitha G. Macko , 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 appellant has filed a petition for review of the initial decision, which sustained the negative suitability determination of the Office of Personnel Management (OPM). On petition for review, the appellant presents several brief arguments, unsupported by references to the record. For example, 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). asserts that he was homeless and under the care of the Department of Veterans Affairs during the period in which OPM considered his suitability for Federal employment, but neither agency provided any assistance in the matter. Petition for Review File, Tab 1 at 4. He also argues that OPM withheld some unidentified evidence that could have changed the outcome in this appeal. Id. at 5. Additionally, the appellant asks that the Board reach a different conclusion than OPM and the administrative judge because he did not intend to provide false, inaccurate, or misleading answers in the various employment documents underlying this appeal. Id. at 5-6. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the 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). 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 Although 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.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 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	DiPiano_DominicAT-0731-23-0126-I-1_Final_Order.pdf	2024-08-21	DOMINIC DIPIANO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0731-23-0126-I-1, August 21, 2024	AT-0731-23-0126-I-1	NP
658	https://www.mspb.gov/decisions/nonprecedential/Lowe_Donna_M_DE-0714-19-0285-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DONNA M. LOWE, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER DE-0714-19-0285-I-1 DATE: August 21, 2024 THIS ORDER IS NONPRECEDENTIAL1 Donna M. Lowe , Tucson, Arizona, pro se. Maxine N. Romero , Phoenix, Arizona, 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 The appellant has filed a petition for review of the initial decision, which sustained her removal pursuant to 38 U.S.C. § 714. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE the initial 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). decision, and REMAND this matter to the field office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW The appellant’s arguments on review do not provide a basis to disturb the initial decision. The appellant asserts that the administrative judge failed to consider all of the evidence in the record and disagrees with some of the administrative judge’s findings of fact. Petition for Review (PFR) File, Tab 1 at 4-6. We have considered all of the appellant’s assertions in this regard; however, we find that they do not provide a basis to disturb any of the administrative judge’s reasoned factual findings. See Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions); see also Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same). The appellant contends that the administrative judge improperly informed her that she needed to limit her witnesses and documentary evidence. PFR File, Tab 1 at 4-6. An administrative judge has broad discretion to regulate the course of the hearing and to exclude evidence and witnesses that have not been shown to be relevant, material, and nonrepetitious. Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal of an initial decision on the ground that the administrative judge abused his discretion in excluding evidence, the appellant must show on review that relevant evidence, which could have affected the outcome, was disallowed. Sanders v. Social Security Administration , 114 M.S.P.R. 487, ¶ 10 (2010). Here, the appellant has not made such a showing. Indeed, the appellant withdrew her requests for three witnesses that she had initially sought, and the administrative judge disallowed only one of her proffered witnesses on the basis that his anticipated testimony was “unnecessarily cumulative.” Initial Appeal File (IAF),2 Tab 12 at 5, Tab 13 at 2, Tab 14 at 5; see Thomas, 116 M.S.P.R. 453, ¶ 4. The appellant did not object to this reasoned ruling; thus, her contentions regarding witnesses are unavailing. See Tarpley v. U.S. Postal Service , 37 M.S.P.R. 579, 581 (1988) (stating that an appellant’s failure to timely object to rulings on witnesses precludes her doing so on petition for review). Moreover, the appellant neither identifies the testimony and documentary evidence that she was allegedly precluded or dissuaded from introducing nor explains how this evidence could have affected the outcome of her appeal. See Sanders, 114 M.S.P.R. 487, ¶ 10. Thus, the appellant’s evidentiary contentions are unavailing. Lastly, the appellant avers that she is unable to “go back and review any information in regards to the hearing” because she was not provided with a written copy of the hearing transcript. PFR File, Tab 1 at 5. She explains that she attempted to obtain a copy of the transcript, but she was told that she would have to pay for the transcript, which she could not afford. Id. An appellant is not entitled to a copy of the written hearing transcript free of charge. See 5 C.F.R. § 1201.53(b) (“Any party may request that the court reporter prepare a full or partial transcript, at the requesting party’s expense.”). Indeed, Board regulations provide that a recording of the hearing may serve as the official hearing record. 5 C.F.R. § 1201.53(a). Here, the official hearing record, i.e., the hearing recording, was available to the appellant. IAF, Tab 17, Hearing Recording. Thus, the appellant’s contentions are unpersuasive. Accordingly, the appellant’s petition for review does not meet the standard set forth in 5 C.F.R. § 1201.115 for granting Board review, and her petition would ordinarily be denied. We remand the matter for the administrative judge to provide the parties with an opportunity to present evidence and argument regarding whether the agency’s error in sustaining the removal based on substantial evidence harmed the appellant. Notwithstanding the above findings, remand of the appeal is required for a different reason. To this end, the deciding official here sustained the agency’s3 action because she found that there was substantial evidence to support the charge levied against the appellant, i.e., conduct unbecoming a Federal employee. IAF, Tab 4 at 10. After the initial decision in this case was issued, the U.S. Court of Appeals for the Federal Circuit found in Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021), that the agency had erred by applying the substantial evidence standard to its internal review of a disciplinary action under 38 U.S.C. § 714. Rodriguez, 8 F.4th at 1296-1301. The Federal Circuit found that substantial evidence2 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 evidence3 standard in determining whether the appellant’s performance or misconduct warrants the action at issue. Id. at 1298-1301; see Bryant v. Department of Veterans Affairs , 26 F.4th 1344, 1347 (Fed. Cir. 2022) (agreeing with the appellant’s contention 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 by Rodriguez). The Federal Circuit’s decision in Rodriguez applies to all pending cases, regardless of when the events at issue took place. Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶ 22. The administrative judge and the parties here did not have the benefit of Rodriguez prior to the close of the record. We therefore remand this case for adjudication of whether the agency’s application of the substantial evidence standard was harmful error. See id., ¶ 23 (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). A harmful error is an error by the agency in the application of its procedures that is likely to have caused the agency to 2 Substantial evidence is the degree of relevant evidence a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. 5 C.F.R. § 1201.4(p). 3 Preponderant evidence is that degree of relevant evidence a reasonable person, considering the record as a whole, would accept as sufficient to find a contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).4 reach a different conclusion from the one it would have reached in the absence or cure of the error. Ronso v. Department of the Navy , 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r). The appellant bears the burden of proving her affirmative defenses by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). On remand, the administrative judge should provide the parties with an opportunity to present evidence and argument, including a supplemental hearing if requested by the appellant, addressing whether the agency’s use of the substantial evidence standard constituted harmful error. On remand, the administrative judge should allow the parties an opportunity to present evidence and argument regarding whether the agency considered the Douglas factors in determining the penalty. In Connor v. Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir. 2021), which also was issued subsequent to the initial decision, the Federal Circuit found that the Board must consider and apply the factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981), in its review of an agency’s penalty selection under an action taken pursuant to 38 U.S.C. § 714. Connor, 8 F.4th at 1325-26. The Federal Circuit found that, although section 714 precludes the Board from mitigating the agency’s chosen penalty, “[i]t does not alter the penalty review with respect to the Douglas factors,” id. at 1326, and that, although the Board cannot mitigate the penalty, “if the Board determines that the [agency] failed to consider the Douglas factors or that the chosen penalty is unreasonable, the Board must remand to the [agency] for a redetermination of the penalty,” id. at 1326-27 (citing Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1325 (Fed. Cir. 2021) (explaining that “if the [Board] concludes that the [agency’s] removal decision is unsupported by substantial evidence, the [Board] should remand to the [agency] for further proceedings”)). As we found with the Rodriguez case, the Federal Circuit’s decision in Connor applies to all pending cases, regardless of when the events at issue took place. See Semenov, 2023 MSPB 16, ¶¶ 22, 49-50.5 Here, the administrative judge did not address the Douglas factors, and it is unclear from the record as to whether the agency properly considered the Douglas factors in deciding to remove the appellant. IAF, Tab 18, Initial Decision (ID) at 16. On remand, the administration judge shall permit the parties to submit additional evidence and argument, including a supplemental hearing if requested by the appellant, addressing the penalty issue. See Semenov, 2023 MSPB 16, ¶ 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, the administrative judge should remand the appellant’s removal to the agency for a new decision on the appropriate penalty. See id. (citing Connor, 8 F.4th at 1326-27; Sayers v. Department of Veterans Affairs , 954 F.3d 1370, 1375 -76, 1379 (Fed. Cir. 2020)).4 ORDER For the reasons discussed above, we remand this case to the field office for further adjudication in accordance with this Remand Order. 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. 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.5 The administrative judge may, if appropriate, incorporate into the remand decision his prior findings concerning the agency’s 4 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). 5 If the administrative judge finds that the agency committed harmful error such that the disciplinary action is not sustained, he need not address the penalty issue.6 proof of its charge.6 The administrative judge may also incorporate into the remand decision, if appropriate, his prior findings regarding the appellant’s affirmative defenses of disparate treatment disability discrimination and retaliation for equal employment opportunity activity, but in doing so, the administrative judge must apply the analytical framework set forth in Pridgen v. Office of Management and Budget , 2022 MSPB 31.7 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 6 If any argument or evidence adduced on remand affects the administrative judge’s prior analysis of any issue in this appeal, he should address such argument or evidence in the remand decision. 7 The administrative judge concluded that the appellant failed to prove her affirmative defenses because she failed to show that any prohibited considerations were a motivating factor in the agency’s decision to remove her. ID at 15-16. After the initial decision was issued, the Board issued it its decision in Pridgen. In light of the administrative judge’s findings, the change in analytical framework articulated in Pridgen appears not to provide a basis to disturb the administrative judge’s conclusion regarding the appellant’s affirmative defenses.7	Lowe_Donna_M_DE-0714-19-0285-I-1_Remand_Order.pdf	2024-08-21	DONNA M. LOWE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0714-19-0285-I-1, August 21, 2024	DE-0714-19-0285-I-1	NP
659	https://www.mspb.gov/decisions/nonprecedential/Remolona_Miziel_NY-1221-23-0057-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MIZIEL REMOLONA, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER NY-1221-23-0057-W-1 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Christopher Forasiepi , Esquire, Bobby Devadoss , Esquire, and Maya Glaspie , Esquire, Dallas, Texas, for the appellant. Georgette Gonzales-Snyder , Esquire, Syracuse, New York, for the agency. Shelly S. Glenn , Esquire, Baltimore, Maryland, 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 individual right of action (IRA) appeal for lack of jurisdiction without a hearing. On petition for review, the appellant challenges the denial 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). jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 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 and findings on exhaustion and regarding the appellant's alleged protected disclosures , we AFFIRM the initial decision. DISCUSSION OF ARGUMENTS ON REVIEW The appellant did not nonfrivolously allege that she made a protected disclosure. ¶2We agree with the administrative judge that the appellant did not nonfrivolously allege that she made a protected disclosure.2 Initial Appeal File (IAF), Tab 14, Initial Decision (ID) at 7-13. We supplement the administrative judge’s conclusion with the following discussion. ¶3A protected disclosure is a disclosure that an appellant reasonably believes evidences one of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8) (A). Turner v. Department of Agriculture , 2023 MSPB 25, ¶ 14. A reasonable belief exists if a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the appellant could reasonably conclude 2 We thus do not reach the question of whether the appellant nonfrivolously alleged that her protected disclosures were a contributing factor in her removal.2 that the actions of the Government evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A). Id. ¶4Disclosures must be specific and detailed, not vague allegations of wrongdoing. Gabel v. Department of Veterans Affairs , 2023 MSPB 4, ¶ 6. Vague, conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not meet the nonfrivolous pleading standard needed to establish the Board’s jurisdiction over an IRA appeal. El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Thus, in Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363, ¶¶ 21-22, 24 (2005), the Board found that an appellant’s bare allegations of discrimination and broad and nonspecific claims of managerial “irregularities,” among others, were too vague to constitute nonfrivolous allegations of protected disclosures. In another example, in Padilla v. Department of the Air Force, 55 M.S.P.R. 540, 543-44 (1992), the Board affirmed a jurisdictional dismissal of an IRA appeal, finding that an appellant’s assertions that there was “fraud, waste, and abuse” in certain sections of a military unit, and that various conditions were caused by “poor organization, discipline, and management,” were vague allegations regarding broad and imprecise matters that did not constitute whistleblowing. ¶5The appellant’s alleged disclosures in this appeal were similarly defective. During the appeal, the administrative judge notified the appellant—who was represented by attorneys throughout her appeal—that to establish jurisdiction, she must make a nonfrivolous allegation that she made a protected disclosure or engaged in protected activity. IAF, Tab 6 at 2. The notice also provided the appellant with the relevant legal standards, including the definition of a protected disclosure. Id. at 2-7. With her notice, the administrative judge ordered the appellant to file a statement describing her protected disclosures, explaining that a nonfrivolous allegation was a “detailed, factual allegation,” while conclusory, vague, or unsupported allegations would not suffice. Id. at 3-4, 7-8. 3 ¶6In response, the appellant claimed she was removed in reprisal for disclosing to her supervisors and preceptors that she was receiving “contradictory and inconsistent instructions regarding her job duties” from them and that the instructions were incorrect, violated agency policy, and could harm patients. IAF, Tab 8 at 8-9, 13. The appellant further alleged that her disclosures regarding her inconsistent instructions evidenced, among other things, an “abuse of power” and “perceived waste, fraud, and/or abuse” by her supervisors and preceptors. Id. at 9, 11. Nowhere below, however, did the appellant describe what these “contradictory and inconsistent instructions” were, why they were incorrect, what policy they allegedly violated,3 or how they could harm patients.4 The vagueness of the appellant’s alleged disclosures precludes any determination of whether she reasonably believed they evidenced one of the forms of wrongdoing listed in 5 U.S.C. § 2302(b)(8), as required for protection under the whistleblower 3 Ordinarily, to make a protected disclosure of a violation of law, rule, or regulation, an employee must identify the specific law, rule, or regulation that was violated, though an individual need not identify a statutory or regulatory provision by a particular title or number when the statements and the circumstances surrounding the making of those statements clearly implicate an identifiable violation of law, rule, or regulation. Ayers v. Department of the Army , 123 M.S.P.R. 11, ¶ 24 (2015) (internal quotations omitted). Here, the appellant’s descriptions of her alleged disclosures did not clearly implicate an identifiable violation of law, rule, or regulation. 4 In her petition for review, the appellant asserts for the first time that she disclosed concerns that COVID-19 screening instructions she received from her preceptors contradicted written instructions and agency policies. Petition for Review (PFR) File, Tab 1 at 13. She did not, however, identify the policies with any specificity, provide a copy of them, or identify where they could be located. She did provide further details regarding the allegedly contradictory instructions in her reply to the response to her petition for review. PFR File, Tab 4 at 5, 7. The appellant does not show that her new arguments are based on new and material evidence that was previously unavailable despite due diligence, nor offer any reason for why she did not provide these details below in response to the administrative judge’s clear jurisdictional order or otherwise. We thus do not consider them. See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016).4 protection statutes.5 The appellant’s descriptions of her alleged disclosures were thus too vague to satisfy the nonfrivolous pleading standard in an IRA appeal.6 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 5 The agency argues in its response to the petition for review that, because the appellant’s Office of Special Counsel (OSC) complaint did not describe her alleged disclosures regarding inconsistent instructions, the appellant was precluded from asserting those disclosures in her Board appeal. PFR File, Tab 3 at 13-15. We disagree and supplement the administrative judge’s exhaustion findings with the following discussion. ID at 6. The substantive requirements of exhaustion are met when an appellant has provided OSC with sufficient basis to pursue an investigation. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. The Board’s jurisdiction over an IRA appeal is limited to those issues that have been previously raised with OSC. Id. An appellant may demonstrate exhaustion through her initial OSC complaint or correspondence with OSC. Id., ¶ 11. The agency’s argument overlooks a letter to OSC in which the appellant alleged that she was removed in reprisal for disclosing concerns regarding inconsistent instructions from her supervisors and preceptors. IAF, Tab 8 at 224-26. Because this letter provided OSC with a sufficient basis to investigate those alleged disclosures, despite their vagueness, the appellant exhausted administrative remedies regarding them. 6 The appellant also alleges for the first time on review that she made disclosures to her supervisors and preceptors regarding reports about her performance, and that the agency characterized her objections to violations of policy and her written instructions as misconduct in the decision notice. PFR File, Tab 1 at 12, 15. The appellant’s purported disclosures about her performance reports are also overly vague, as she provides no description of what she disclosed about the reports, or any other basis for determining whether she reasonably believed the disclosures evidenced one of the forms of wrongdoing set forth in 5 U.S.C. § 2302(b)(8). We also fail to discern anything in the decision notice which matches the appellant’s description of its contents. Id. at 193-95. 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.5 the 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 representation6 for Merit Systems Protection Board appellants before the 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 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.8 The court of appeals must receive your petition for 8 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 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. 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	Remolona_Miziel_NY-1221-23-0057-W-1_Final_Order.pdf	2024-08-21	MIZIEL REMOLONA v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-1221-23-0057-W-1, August 21, 2024	NY-1221-23-0057-W-1	NP
660	https://www.mspb.gov/decisions/nonprecedential/Hutcheson_Joseph_B_AT-3443-23-0523-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSEPH BENTON AVERY HUTCHESON, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-3443-23-0523-I-1 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Joseph Benton Avery Hutcheson , Apollo Beach, Florida, pro se. Kristin Langwell , Esquire, Hines, Illinois, for the agency. RaTanya Fernandez , Esquire, St. Petersburg, Florida, 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 appeal of a written reprimand for lack of jurisdiction. 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). ¶2On review, the appellant repeats his arguments concerning the agency’s alleged improper reprimand and about the grade level at which the agency hired him. Petition for Review (PFR) File, Tabs 1-2. We agree with the administrative judge that the Board lacks chapter 75 jurisdiction over the appellant’s challenge to his letter of reprimand. Initial Appeal File (IAF), Tab 6, Tab 26, Initial Decision (ID) at 1-3; see 5 U.S.C. §§ 7512, 7513(d); McVay v. Arkansas National Guard, 80 M.S.P.R. 120, 123 (1998); 5 C.F.R. § 1201.3(a)(1). We also find that the Board lacks chapter 75 jurisdiction over allegations concerning the grade level at which the agency hired the appellant. PFR File, Tabs 1-2; IAF, Tabs 7-25; see 5 U.S.C. § 7512; 5 C.F.R. § 1201.3(a)(1). As explained in the administrative judge’s initial decision and order to show cause, we find that the appellant has not alleged facts that would establish the Board’s jurisdiction. IAF, Tab 6; ID at 1-3. Therefore, we find that the administrative judge correctly dismissed the appeal for lack of jurisdiction.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	Hutcheson_Joseph_B_AT-3443-23-0523-I-1_Final_Order.pdf	2024-08-21	JOSEPH BENTON AVERY HUTCHESON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-23-0523-I-1, August 21, 2024	AT-3443-23-0523-I-1	NP
661	https://www.mspb.gov/decisions/nonprecedential/Walker_James_L_SF-0752-22-0444-I-2_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JAMES LLOYD WALKER, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER SF-0752-22-0444-I-2 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 James Lloyd Walker , Helendale, California, pro se. Emelia M. Sanchez , Robert Aghassi , and Veronica Hale , Barstow, 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 ¶1The appellant has filed a petition for review of the initial decision, which dismissed his involuntary retirement appeal for lack of jurisdiction. For the reasons discussed below, we DENY the appellant’s petition for review, VACATE 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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, and DISMISS the appeal as barred by the doctrine of res judicata. BACKGROUND ¶2The agency removed the appellant, a WG-9 Painter, for physical inability to perform the duties of a painter, effective June 10, 2022. Walker v. Department of the Navy, SF-0752-22-0444-I-1, Initial Appeal File (0444 IAF), Tab 9 at 11. On or about June 16, 2022, the appellant applied for voluntary retirement under the Civil Service Retirement System, effective June 10, 2022. 0444 IAF, Tab 1 at 4, 20-23. On June 17, 2022, the appellant filed an appeal with the Board challenging his removal. Walker v. Department of the Navy , SF-0752-22-0443-I-1, Initial Appeal File, Tab 1 at 4. On June 18, 2022, the appellant filed the instant appeal, asserting an involuntary retirement claim. 0444 IAF, Tab 1 at 4. The administrative judge issued an acknowledgment order stating that because these two appeals contained “distinct claims,” the parties should address each appeal separately. 0444 IAF, Tab 2 at 1. ¶3After holding a hearing addressing both the appellant’s removal and his involuntary retirement claim, the administrative judge issued a June 23, 2023 initial decision affirming the appellant’s removal. Walker v. Department of the Navy, SF-0752-22-0443-I-2, Appeal File, Tab 49, Initial Decision (0443 ID). The appellant did not file a petition for review of the initial decision affirming his removal, which became final on July 27, 2023. 0443 ID at 37. Also on June 23, 2023, the administrative judge then issued a separate initial decision dismissing the appellant’s involuntary retirement appeal for lack of jurisdiction. Walker v. Department of the Navy , SF-0752-22-0444-I-2, Appeal File, Tab 23, Initial Decision (0444 ID). Specifically, he found that the Board lacks jurisdiction to re-adjudicate the appellant’s removal, which was the root of the appellant’s involuntary retirement claim, and even if it could, the appellant had not made a nonfrivolous allegation of jurisdiction. 0444 ID at 11-14.2 ¶4The appellant filed a petition for review of the initial decision dismissing his involuntary retirement claim, arguing, among other things, that the Office of Personnel Management (OPM) had approved him for discontinued service retirement, that the agency failed to provide him with reasonable accommodation, and that medical personnel made misleading statements .2 Petition for Review (PFR) File, Tab 2 at 4, 43-44. The agency filed a response in opposition to the appellant’s petition for review, and the appellant replied to the agency’s opposition. PFR File, Tabs 4-5. DISCUSSION OF ARGUMENTS ON REVIEW ¶5When, as here, an agency decides to remove an employee, and the employee retires on the date of the removal, the employee does not, on that account, lose the right to file a Board appeal contesting the removal. 5 U.S.C. § 7701(j); Mays v. Department of Transportation , 27 F.3d 1577, 1579-81 (Fed. Cir. 1994). However, in such a case, the Board will not address whether the appellant’s retirement was involuntary. Williams v. Department of Health & Human Services, 112 M.S.P.R. 628, ¶ 7 (2009). This is because, if the agency is unable 2 The appellant attached documents to his petition for review, including guidance by OPM on discontinued service retirement, excerpts from the involuntary retirement initial decision, and an affidavit of an agency official. Petition For Review (PFR) File, Tab 2 at 5-62. Among other things, the OPM guidance explains that a discontinued service retirement can only be granted if an employee is separated against his will for reasons including, as in the instant case, a failure to meet the qualification requirements of his position. Id. at 11. The documents submitted by the appellant have no impact on the outcome of this matter, specifically, the applicability of res judicata, and therefore, we do not address them. See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (explaining that the Board will not grant a petition for review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). The appellant also filed motions for leave to file additional evidence related to the approval of his discontinued service retirement. PFR File, Tabs 8-9. The Board’s regulations provide that a pleading of the sort the appellant seeks to submit will not be accepted absent a showing of the need for the pleading. 5 C.F.R. § 1201.114(a). In light of our finding that the appellant’s involuntary retirement appeal is barred by the doctrine of res judicata, the appellant has not shown the need for his additional pleading. 3 to support its removal action, then the appellant is entitled to all the relief he could receive if he showed that his retirement was involuntary, and therefore, the involuntary retirement claim would be moot. Scalese v. Department of the Air Force, 68 M.S.P.R. 247, 249 (1995). Conversely, if the agency shows that it properly decided to remove the appellant, then the appellant cannot show that his retirement was involuntary based on the threat of the removal action. Id. Therefore, the appellant’s involuntary retirement claim should not have been adjudicated as a matter distinct from his removal. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 23 (2014); Williams, 112 M.S.P.R. 628, ¶ 8. However, insofar as the appellant’s involuntary retirement claim was adjudicated as a separate action, it is barred by res judicata.3 ¶6Under 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. 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. Here, there is no dispute that the Board has jurisdiction over the appellant’s removal, and that it rendered a final decision on the merits of that removal action. 0443 ID. Further, the appellant’s involuntary retirement appeal involves the same cause of action and 3 To the extent that the administrative judge dismissed the appellant’s involuntary retirement claim for lack of jurisdiction on the grounds of res judicata, 0444 ID at 12, the doctrine of res judicata is not grounds upon which to dismiss an appeal for lack of jurisdiction but, rather, is a basis to dismiss an appeal over which the Board has jurisdiction, Noble v. U.S. Postal Service , 93 M.S.P.R. 693, ¶ 7 (2003). Here, the Board has jurisdiction over the appellant’s involuntary retirement appeal because it has jurisdiction over his removal, which is the basis of his involuntary retirement claim. See 5 U.S.C. § 7701(j); Mays, 27 F.3d at 1579-81. Accordingly, the doctrine of res judicata may be applied to this matter. 4 the same parties as the appellant’s removal appeal because the appellant’s retirement is predicated on his removal. PFR File, Tab 2 at 4, 43-44. ¶7Stated simply, in order to adjudicate the appellant’s involuntary retirement claim, the Board would have to re-adjudicate his removal. Such action is precluded by the doctrine of res judicata. Accordingly, we dismiss the appellant’s involuntary retirement appeal as the doctrine of res judicata bars the appellant from raising such a claim. 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 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 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.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. 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	Walker_James_L_SF-0752-22-0444-I-2_Final_Order.pdf	2024-08-21	JAMES LLOYD WALKER v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-22-0444-I-2, August 21, 2024	SF-0752-22-0444-I-2	NP
662	https://www.mspb.gov/decisions/nonprecedential/Rose_NicoleDC-0752-22-0510-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD NICOLE A. ROSE, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER DC-0752-22-0510-I-1 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant. Casey Keppler , Joint Base Andrews, Maryland, 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 her removal for failure to meet a condition of employment. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; 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. Except as expressly MODIFIED to review the agency -imposed penalty by considering the relevant Douglas2 factors, we AFFIRM the initial decision and sustain the appellant’s removal. BACKGROUND ¶2Effective June 16, 2022, the agency removed the appellant from her Information Technology Specialist (Security) position based on her failure to meet a condition of her employment—specifically, her failure to obtain her Information Assurance (IA) Certification. Initial Appeal File (IAF), Tab 4 at 29-30, 106. This appeal followed. IAF, Tab 1. After holding the requested hearing, the administrative judge issued an initial decision sustaining the charge but finding that the Board lacked the authority to determine whether reassignment or a lesser penalty would be appropriate under the Douglas factors. IAF, Tab 26, Initial Decision (ID) at 6-12, 16-18. He further found that the appellant did not prove her affirmative defense of harmful error based on the deciding official’s failure to consider the Douglas factors as required by an agency rule. ID at 12-15. Crediting the testimony of the deciding official, he found that the 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.2 agency still would have removed the appellant had the deciding official considered the relevant factors. Id. ¶3The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1 at 12. The agency has responded in opposition to the appellant’s petition for review. PFR File, Tab 3. ANALYSIS ¶4Relying on Radcliffe v. Department of Transportation , 57 M.S.P.R. 237 (1993), the administrative judge concluded that, because the agency proved that the appellant failed to meet a condition of her employment, and there is no agency policy, regulation, or other controlling authority requiring reassignment, the Board lacks the authority to mitigate the removal penalty. ID at 16-18; Radcliffe, 57 M.S.P.R. at 241. Radcliffe involved an up-or-out air traffic control training program and its holding was limited to those circumstances. In cases like this one involving an adverse action based on a charge of failure to maintain a condition of employment, the Board has determined that a more limited set of Douglas factors generally are the most relevant, including: (1) the nature of the offense; (2) its effect on an appellant’s performance of the job; and (3) the availability and effect of alternative sanctions. Penland v. Department of the Interior, 115 M.S.P.R. 474, ¶ 8 (2010). Therefore, the administrative judge erred by finding that he lacked the authority to mitigate the agency’s penalty determination. ¶5When the agency’s charge is sustained, as in this case, 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. Id., ¶ 7. In making this determination, the Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsibility, but to ensure that managerial judgment has been3 properly exercised. Id. The Board will modify or mitigate a penalty only when it finds that the agency failed to weigh the relevant factors or that the penalty clearly exceeds the bounds of reasonableness. Id. The Board will independently weigh the relevant factors only if the deciding 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). ¶6Here, the deciding official testified that he started—but did not complete—a Douglas analysis before reaching his decision because he believed that the factors did not apply to the appellant’s non-disciplinary removal. Hearing Transcript (HT) at 110-12, 190-91 (testimony of the deciding official). Although he testified concerning the three factors identified in Penland to be the most relevant, there is no evidence that he considered them prior to making his decision. HT at 192-98 (testimony of the deciding official); see Penland, 115 M.S.P.R. 474, ¶ 8. Thus, the agency’s penalty determination is not entitled to deference. See Batara, 123 M.S.P.R. 278, ¶ 5; Von Muller v. Department of Energy , 101 M.S.P.R. 91, ¶ 19, 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. ¶7Nevertheless, we find that the removal penalty lies within the bounds of reasonableness. Regarding the nature of the offense and its effect on the appellant’s performance of the job, we agree with the administrative judge that the appellant’s failure to obtain an IA certification meant that she was unable to perform the primary duties of her position. ID at 6-8, 14 n.14-15; IAF, Tab 4 at 136, 317; HT at 15-18 (testimony of the proposing official), 84 (testimony of the deciding official). The proposing and deciding officials testified that the limitations on what job duties the appellant could permissibly perform imposed a burden on other employees in the office to complete work that should have been assigned to the appellant. ID at 14-15 n.15; HT at 17-18 (testimony of the proposing official), 86-87 (testimony of the deciding official). Furthermore,4 although the appellant was required as a condition of employment to obtain the IA certification within 6 months, the agency afforded her 2 years to obtain the certification. HT at 72-73 (testimony of the proposing official), 101-02 (testimony of the deciding official). The agency permitted her to study 4 hours daily while on duty, but she was unable to pass the examination after 3 attempts. ID at 9, 11-12; HT at 35-39 (testimony of the proposing official), 222-24 (testimony of the appellant). Considering these circumstances, we find that the nature of the offense and its effect on the appellant’s performance of the job weigh in favor of removal. ¶8As for the availability and effectiveness of alternative sanctions, the appellant alleges on review that there were vacant positions at her duty station for which she was qualified and to which she could have been reassigned. PFR File, Tab 1 at 11-12. However, the administrative judge found, and the appellant does not dispute, that there is no agency regulation or policy requiring reassignment under these circumstances. ID at 16-17. Furthermore, the deciding official testified that there were no vacant positions under his authority that did not require an IA certification. HT at 131, 191, 195 (testimony of the deciding official). Moreover, the Board has held that removal is a reasonable penalty for an employee’s failure to meet the requirements of her position. See, e.g., Penland, 115 M.S.P.R. 474, ¶ 11. ¶9Finally, the appellant reiterates on review her argument below that the agency did not give her the option of completing a less difficult course and examination that would have satisfied the IA certification requirement. PFR File, Tab 1 at 7-10. We see no reason to disturb the administrative judge’s well-reasoned credibility findings and conclusion that the appellant chose the course on her own accord. ID at 10-12.5 ¶10Accordingly, we find that removal in this case is reasonable3 and promotes the efficiency of the service, and we affirm the initial decision. 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 3 For this same reason, we agree with the administrative judge that the appellant failed to prove her affirmative defense of harmful error. ID at 12-15. 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file7 with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 8 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 9 If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Rose_NicoleDC-0752-22-0510-I-1_Final_Order.pdf	2024-08-21	NICOLE A. ROSE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DC-0752-22-0510-I-1, August 21, 2024	DC-0752-22-0510-I-1	NP
663	https://www.mspb.gov/decisions/nonprecedential/Zamarripa_Diana_M_DA-0752-18-0058-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DIANA M. ZAMARRIPA, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DA-0752-18-0058-I-1 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Benjamin Wick , Esquire, Denver, Colorado, for the appellant. Julianne Kelly-Horner , Esquire, and Ryan W. Thornton , Esquire, Laredo, Texas, for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained her 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 The appellant was employed as a Supervisory Border Patrol Agent for the U.S. Customs and Border Protection (CBP) in Laredo, Texas. Initial Appeal File (IAF), Tab 7 at 15. On November 23, 2015, the agency’s Office of Inspector General (OIG) began an investigation into the appellant based on an internal complaint that she was “associating with known criminals.” Id. at 25-26. The investigation culminated in a Report of Investigation (ROI), which concluded, among other things, that the appellant conducted unauthorized database searches of friends and a family member and that, during the investigation, she was not forthcoming regarding previous background checks. Id. at 26-27. Subsequently, the agency proposed her removal based on the charges of lack of candor (9 specifications) and misuse of government information systems (48 specifications). Id. at 15-22. The appellant replied to the notice of proposed removal, IAF, Tab 8 at 122-31, Tab 10 at 5, and on October 16, 2017, the deciding official issued a final decision removing her from Federal service, IAF, Tab 10 at 6-8. The appellant appealed her removal to the Board, arguing that the allegations against her were not supported by evidence and that the penalty of2 removal was unreasonable and the result of discrimination and retaliation for engaging in equal employment opportunity (EEO) activity. IAF, Tab 1 at 7. She also argued that the agency violated her due process rights because the deciding official considered ex parte communications in deciding the penalty. IAF, Tab 18 at 6, Tab 30 at 2. Following a hearing, IAF, Tab 44, Hearing Compact Disc (HCD), the administrative judge issued an initial decision sustaining both charges, finding that the appellant failed to prove her affirmative defenses, and determining that the penalty of removal was reasonable and promoted the efficiency of the service, IAF, Tab 46, Initial Decision (ID). The appellant has filed a petition for review, arguing that the administrative judge improperly analyzed the agency’s evidence to support its charges and that the penalty of removal was excessive. Petition for Review (PFR) File, Tab 3 at 6, 16-20. She also argues that the administrative judge erred in finding that the agency did not violate her due process rights and that the administrative judge abused her discretion in approving an agency witness to testify and in denying the3 appellant’s motions to compel. Id. at 6, 20-29. The agency has filed a response.2 PFR File, Tab 5. DISCUSSION OF ARGUMENTS ON REVIEW The agency proved its charge of misuse of government information systems. In the proposed notice of removal, the agency alleged that the appellant misused government information systems by conducting queries in law enforcement databases, including the Treasury Enforcement Communications System (TECS)—a database that contains sensitive information, including border crossing information and criminal histories of both people and license plates— that were not related to her official duties. IAF, Tab 7 at 15-20. The Automated Targeting System (ATS) is a tool that allows a user to conduct queries in TECS, including vehicle queries based on the entry of license plate information and queries of people based on the entry of a person’s name. HCD. The appellant’s removal was based on 48 instances of alleged misuse of these systems. Id.; IAF, Tab 7 at 16-20. 2 The appellant filed her petition for review on May 31, 2018, PFR File, Tab 3, and the Board issued an acknowledgement order that same day informing the agency that any response or cross petition for review was due on or before June 25, 2018, PFR File, Tab 4. On July 25, 2018, the agency filed its response. PFR File, Tab 5. The Clerk of the Board issued an order informing the agency that its response appeared to be untimely filed. PFR File, Tab 7. The order provided the agency with an opportunity to submit a motion to accept the filing as timely or to waive the time limit and stated that the Board would not consider an untimely response absent a showing of good cause. Id.; see 5 C.F.R. § 1201.114(g). The agency responded stating that it experienced personnel changes in its office and that the due date for its response had been inadvertently miscalendared. PFR File, Tab 8. We find that this does not constitute good cause to excuse the untimely filing. See Retzler v. Department of the Navy , 114 M.S.P.R. 361, ¶¶ 4-5 (2010) (finding that the appellant’s attorney’s failure to note the filing deadline on his calendar did not establish good cause for a 2-month delay); see also Jones v. U.S. Postal Service , 86 M.S.P.R. 410, ¶ 6 (2000) (finding that confusion about the filing deadline did not establish good cause for a 1-month delay); 5 C.F.R. § 1201.114(g). Accordingly, we have not considered the agency’s response to the appellant’s petition for review. See Goldstine v. Department of the Navy , 47 M.S.P.R. 602, 605 (1991) (declining to consider the agency’s response where it failed to submit a motion for a waiver showing good cause for an untimely filing). 4 To support these allegations, the agency presented screenshot printouts showing the searches of the people and license plate numbers detailed in the specifications and had a senior analyst testify regarding the database operations. IAF, Tab 8 at 12-36; HCD (testimony of the senior analyst). Conversely, the appellant denied ever being present at one of the locations displayed on a screenshot that the agency used to support one of the specifications. HCD (testimony of the appellant). Furthermore, although she admitted to conducting a search for two people discussed in the specifications, she contends that she did not actively search for others mentioned in the notice of proposed removal. Id. She further argued that, when she conducted searches of license plates belonging to people from her personal life, the system automatically conducted searches of the vehicles’ registered owners. Id. The senior analyst who testified for the agency denied that the system generated automatic searches of vehicle owners after the entry of a license plate number, HCD (testimony of the senior analyst), but the administrative judge found that, due to the time stamps on the searches being within a minute of each other, the appellant’s explanation was more likely than not the way the systems operated,3 ID at 6-7. Despite crediting the appellant’s testimony regarding the automatic generation of searches stemming from a license plate query, ID at 7-8, the administrative judge found the agency’s screenshot records showing the appellant’s queries to be generally reliable and found that there was no official 3 Because the administrative judge found that the alleged name searches were based on the same initial conduct as the license plate searches, she merged specifications 8-9, 11-12, 14-15, 17-18, 20, 22-23, 25-28, 30-31, 34, 41, 43, and 45-47 with the specifications alleging unauthorized license plate searches. ID at 6-8. The appellant has not challenged the administrative judge’s decision to merge these specifications. PFR File, Tab 3. We have reviewed the substance of the allegations, and we find no error in the administrative judge’s decision. See Alvarado v. Department of the Air Force, 103 M.S.P.R. 1, ¶ 18 (2006) (finding that, when two charges are based on the same act of misconduct and proof of one charge automatically constitutes proof of the other, the charges should be merged), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d 490 F. App’x 932 (10th Cir. 2012). 5 agency purpose for the queries, ID at 4-9 & n.3. Accordingly, the administrative judge found that the agency proved the charge.4 ID at 9. On review, the appellant again argues that the screenshots relied upon by the agency were inaccurate and that, regarding one of the specifications, she was never present at the location where one of the queries was allegedly made. PFR File, Tab 3 at 16-17. The administrative judge considered these arguments and found that any time and date inconsistencies were largely the result of a time zone difference, ID at 4-5 n.3, and that, even if the appellant was not present at the location derived from the corresponding screenshot, she nonetheless did not deny that she conducted the search of the person detailed in the specification, ID at 4-5. Thus, the administrative judge found that the agency proved the essence of that specification. Id.; (citing Smith v. Department of Transportation , 106 M.S.P.R. 59, ¶ 15 (2007)). We agree with the administrative judge’s well-reasoned conclusions regarding the appellant’s arguments, and we find that the reiteration of those arguments in the appellant’s petition for review amounts to nothing more than a disagreement with the administrative judge’s findings. Accordingly, we find no basis to disturb the initial decision in that regard. 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 4 The administrative judge did not sustain specification 39, which alleged that, on November 22, 2015, the appellant misused a government information system by conducting two queries of a vehicle with a specified license plate number, which were not related to her official duties. IAF, Tab 7 at 19. She found that the agency only established that the appellant conducted one of the queries, but not both. ID at 9. In addition, the administrative judge did not sustain specification 40, finding that it was redundant of specification 37. Id. However, the administrative judge properly sustained the charge despite the agency’s failure to prove two of the 48 specifications. See Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (holding 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). 6 credibility); Broughton v. Department of Health & Human Services , 33 M.S.P.R. 357, 359 (1987) (same).5 The administrative judge did not err in finding that the appellant failed to prove that the agency violated her due process rights. The appellant argued below that the agency violated her due process rights when it failed to disclose information that the deciding official considered when determining the appropriate penalty. IAF, Tab 18 at 6, Tab 30 at 2. Although an appellant’s right to due process can extend to ex parte information provided to a deciding official, only ex parte communications that introduce new and material evidence to the deciding official constitute due process violations. 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). In deciding whether new and material information has been introduced by means of ex parte communications, the Board should consider the facts and circumstances of each particular case. Stone, 179 F.3d at 1377. Among the factors that will be useful for the Board to weigh are: (1) whether the ex parte communication merely introduces cumulative information or new information; (2)whether the employee knew of the error and had a chance to respond to it; and (3) whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner. Id. Ultimately, the inquiry of the Board is whether the ex parte communication is “so substantial and so likely 5 The lack of candor charge included in the proposal notice and final decision to remove the appellant from Federal service originated from the allegations contained in the misuse of government information systems charge. IAF, Tab 7 at 15-22. The appellant has also argued on review that, because the agency failed to meet its burden of proof on the misuse of government information systems charge, it also failed to prove the lack of candor charge. PFR File, Tab 3 at 16-18. We have already found that the agency met its burden on the misuse of government information systems charge and we therefore find the appellant’s general challenge on review to the lack of candor charge to be without merit. Nonetheless, we have reviewed the specifications of that charge and the agency’s evidence to support them, and we find no reason to disturb the administrative judge’s conclusions. See Crosby, 74 M.S.P.R. at 105-06; Broughton, 33 M.S.P.R. at 359. 7 to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.” Id. On review, the appellant argues that the deciding official relied on several pieces of information that were not provided to her. PFR File, Tab 3 at 12-13, 25-29. Primarily, she claims that the deciding official improperly relied on the following information: several comparators whose information was not provided to her, the table of penalties, the agency’s standards of conduct, an Analytical Management Systems Control Office (AMSCO) report which detailed allegations of misconduct against the appellant, and the deciding official’s own personal experiences. Id. She also asserts that the deciding official was provided with additional information to which she was not privy, including an attachment to the AMSCO report which referenced criminal associations and identified the appellant, a two-page document that purports to list 60 unauthorized queries that the appellant conducted, additional TECS information, and an additional 600 pages of documents allegedly relied upon by the agency. Id. In the initial decision, the administrative judge found no due process violation regarding the alleged ex parte information. ID at 17-23. Specifically, she noted that the appellant was on notice of the agency’s reliance on its standards of conduct because the proposal notice referenced the relevant portions. ID at 19-20. Regarding the AMSCO report, the administrative judge found that, although it appeared that the deciding official had reviewed the report and the appellant was not provided with a copy of the report as a separate document, the information contained in the report was included in the agency’s ROI, which the appellant did not dispute that she received. ID at 20. Accordingly, the administrative judge found that, although the document could be considered ex parte information, it did not rise to the level of a due process violation because the information was cumulative. Id. On review, the appellant does not make any compelling argument directly challenging these findings. PFR File, Tab 3 at 27. We have reviewed the8 relevant documents, and we agree with the administrative judge that the information contained in the agency’s standards of conduct and in the AMSCO report was included in the proposal notice, rendering it cumulative. We further find that, because the relevant information was included in the proposal notice, the appellant had an opportunity to respond to it and she has not shown that the information placed undue pressure on the deciding official to rule in a particular manner. Accordingly, we agree with the administrative judge that the agency did not violate the appellant’s due process rights regarding these documents. See Stone, 179 F.3d at 1377. Regarding the comparator information and the table of penalties, which were both provided to the deciding official, the administrative judge found that there was no evidence that the deciding official considered this information as an aggravating factor in issuing the penalty of removal. ID at 21-22. We have reviewed the deciding official’s testimony and the removal notice, IAF, Tab 10 at 7-8; HCD (testimony of the deciding official), and we agree with the administrative judge that there is no evidence that any comparator information or the table of penalties was considered by the deciding official as an aggravating factor, cf. Solis v. Department of Justice , 117 M.S.P.R. 458, ¶ 7 (2012) (holding that, when an agency intends to rely on aggravating factors as the basis for the imposition of a penalty, such factors should be included in the advance notice of adverse action so that the employee will have a fair opportunity to respond to those factors before the agency’s deciding official). Thus, to the extent the deciding official considered comparator information or the table of penalties in his penalty assessment, the information contained therein did not result in undue pressure on him to rule in a particular manner.6 See Stone, 179 F.3d at 1377. 6 The appellant argues that the deciding official received comparator information for employees charged with disreputable association, even though she was not charged with that conduct. PFR File, Tab 3 at 28-29. The administrative judge considered this argument and found that there was no evidence that the deciding official considered information about charges other than those set forth in the proposal notice. ID at 22 n.9. She reasoned that, although the agency’s labor and employee relations specialist9 The appellant also argues that the deciding official improperly relied upon his own experiences in considering her proposed removal. PFR File, Tab 3 at 27-28. Specifically, the appellant argues that the deciding official’s admitted reliance on his 22 years of experience in the field of TECS usage was inappropriate ex parte information to which she did not have the opportunity to respond.7 Id. However, the deciding official’s reliance on his own experience does not constitute a due process violation under Ward and Stone. Although the Board has held that an agency may have committed a due process violation when information that is personally known to a deciding official is considered in issuing a final decision but was not included in a proposal notice, Wilson v. Department of Homeland Security , 120 M.S.P.R. 686, ¶ 9 (2014), the ex parte information at issue generally contemplates the appellant’s circumstances, such as prior discipline or additional conduct that was not charged in the proposal notice, see id., ¶ 10; Lopes v. Department of the Navy , 116 M.S.P.R. 470, ¶ 10 (2011). The information at issue here is the deciding official’s own experiences and points of reference regarding the nature of the misconduct, rather than additional information about the appellant’s circumstances of which the deciding official was independently aware, but not included in the proposal. HCD (testimony of the deciding official). Furthermore, although due process mandates that a proposal notice must be sufficiently detailed to provide a testified that she provided comparator information on the charge of inappropriate association to the Disciplinary Review Board, she denied discussing those comparators with the deciding official. Id. 7 The administrative judge considered this argument and found that there was no evidence of bias by the deciding official or any evidence that any particular aspect of his professional experience and background presented an intolerable risk of unfairness to the appellant. ID at 22-23 (citing Holton v. Department of the Navy , 123 M.S.P.R. 688, ¶ 30 (2016), aff’d 884 F.3d 1142 (Fed. Cir. 2018)). Although the administrative judge did not analyze this claim as a potential due process violation under Ward and Stone as set forth above, the outcome would be the same even if she had. Therefore, the appellant’s rights are not prejudiced by the administrative judge’s analysis of this due process argument. 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 to reverse an initial decision). 10 meaningful opportunity to respond, Lamour v. Department of Justice , 106 M.S.P.R. 366, ¶ 9 (2007), an agency is not required to provide notice of all circumstances that could conceivably be relevant to the penalty, Douglas, 5 M.S.P.R. at 304 n.65. Accordingly, we find that the appellant failed to prove that the agency committed a due process violation in this regard. Lastly, the appellant argues that the deciding official considered numerous other documents, including an attachment to the AMSCO report which referenced criminal associations and identified the appellant, a two-page document that purports to list 60 unauthorized queries that the appellant conducted, additional TECS information, and an additional 600 pages of documents allegedly relied upon by the agency. PFR File, Tab 3 at 27-29. The administrative judge considered these arguments and found the attachment to the AMSCO report to be cumulative. ID at 20-21 n.7. She also found that, even though it appeared that the deciding official received and reviewed the two-page summary of additional unauthorized queries, there was no evidence that he considered it as an aggravating factor and that, in any event, the information contained in the summary was cumulative with the information provided to the appellant. ID at 21 n.8. On review, the appellant does not directly challenge these findings. PFR File, Tab 3 at 27. We have reviewed the documents and relevant testimony, and we find no error in the administrative judge’s conclusions. Further, although it appears that the administrative judge did not consider whether the additional documents constituted prohibited ex parte information, ID at 17-23, we have reviewed the record and find that the appellant failed to prove that the deciding official considered these additional documents as part of his penalty assessment or that the information contained therein was of the type that was likely to result in undue pressure upon the deciding official to rule in a particular manner, see Stone, 179 F.3d at 1377. Accordingly, we find that, even if the deciding official received ex parte information, the appellant failed to prove that it was so substantial and so likely to cause prejudice that no employee can11 fairly be required to be subjected to a deprivation of property under the circumstances. See id. The administrative judge properly found that the penalty of removal is reasonable under the circumstances . On review, the appellant argues that the agency did not present sufficient evidence to explain why she was disciplined more harshly than certain other employees. PFR File, Tab 3 at 19. Under Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305 (1981), “consistency of the penalty imposed with those imposed upon other employees for the same or similar offenses” is among the factors an agency should consider in setting the penalty for misconduct. To be considered similarly situated for purposes of penalty, a comparator’s misconduct and/or other circumstances must closely resemble those of the appellant. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 13. 8 For the reasons explained in the initial decision, we agree with the administrative judge that the proffered comparators were not similarly situated to the appellant for consistency of the penalty purposes. ID at 30-32. The administrative judge did not abuse her discretion when she approved an agency witness to testify or when she denied the appellant’s motions to compel. The appellant argues on review that the administrative judge abused her discretion when she approved the agency’s request to have the senior analyst testify and when she denied the appellant’s motions to compel. PFR File, Tab 3 at 20-25. Regarding the approval of the senior analyst as an agency witness, the appellant argues that the agency failed to disclose to her in discovery the relevance of the senior analyst’s testimony and that it might call him as a witness, despite including him on its list of witnesses in its prehearing submissions. Id. at 20. She further argues that, because she was unaware that the agency would call the senior analyst to testify, she did not seek in discovery any relevant 8 Although the initial decision was issued prior to Singh, we find that the appellant’s analysis was consistent with the Board’s holdings in that decision. ID at 30-32.12 information and documentation that the senior analyst might have possessed that was responsive to her discovery requests, nor did she take his deposition. Id. In response to a proper and timely discovery request for a list of probable witnesses, the Board expects a party to respond with a complete list. If that party’s prehearing submissions contain additional witnesses not previously identified in response to a proper and timely discovery request, the administrative judge should either deny those witnesses or otherwise ensure that no prejudice will result to the opposing party. In this case, the administrative judge found that the nature of the senior analyst’s expected testimony was of a technical nature, such that, notwithstanding the agency’s failure to identify him during discovery, the appellant would not be prejudiced if he were allowed to testify. IAF, Tab 30 at 4. We find no abuse of discretion in this ruling. We further observe that, to the extent that the administrative judge considered this witness’s testimony, it was, consistent with her ruling, only for purposes of understanding how the ATS and TECS systems work. ID at 3, 4 n.3, 7, 8 n.2. Regarding the appellant’s argument that the administrative judge abused her discretion when she denied the appellant’s motions to compel documents, the appellant specifically alleges on review that the abuse in discretion derived from the administrative judge’s denial of the motions to compel due to the agency’s claims of privilege. PFR File, Tab 3 at 22-24. The appellant argues that the agency withheld responsive documents based on a claim of privilege regarding comparator information, the draft proposal and decision letters, and redacted email communications. Id. at 23. In the administrative judge’s January 24, 2018 order addressing the appellant’s motion to compel, she granted the appellant’s request related to identifying potential comparator employees and denied a similar request because the agency had already supplemented its response. IAF, Tab 34 at 4-5. The administrative judge also granted the appellant’s request for any and all documents and communications related to formal, informal, proposed, or13 effectuated discipline against the appellant. Id. at 6. In this order, the administrative judge does not appear to have denied any of the appellant’s requests based on the agency’s claims of privilege. The appellant filed a second motion to compel documents that were identified in a deposition. IAF, Tab 37. The administrative judge denied the motion as untimely, IAF, Tab 39; see 5 C.F.R. § 1201.73(d)(3), and the appellant requested reconsideration of that ruling because the case had been suspended during the relevant time period for a timely motion, IAF, Tab 40. The administrative judge denied the request for reconsideration, noting that a case suspension does not preclude the parties from filing motions through the Board’s e-appeal system or otherwise. IAF, Tab 41; see 5 C.F.R. § 1201.28(b). Because none of the orders denying the appellant’s motions to compel discuss or rely on the agency’s claim of privilege in their denials, we find no merit to the appellant’s argument on review, and we find no abuse of discretion. We have considered all of the appellant’s arguments on review but have concluded that a different outcome is not warranted. Accordingly, we affirm the initial decision and deny the appellant’s petition for review. 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 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.14 immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If 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. 15 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that 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. The court of appeals must 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 17 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.18	Zamarripa_Diana_M_DA-0752-18-0058-I-1_Final_Order.pdf	2024-08-21	DIANA M. ZAMARRIPA v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-18-0058-I-1, August 21, 2024	DA-0752-18-0058-I-1	NP
664	https://www.mspb.gov/decisions/nonprecedential/Turner_KimberlaDA-0752-18-0253-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KIMBERLA TURNER, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DA-0752-18-0253-I-1 DATE: August 21, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kimberla Turner , Rowlett, Texas, pro se. Richard L. Todd , Esquire, Arlington Heights, Illinois, for the agency. Mary E. Coleman , Esquire, Dallas, Texas, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her constructive suspension appeal for lack of jurisdiction. On petition for review, the appellant generally disagrees with the administrative judge’s findings and alleges that she committed a number of procedural errors. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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. Except as expressly MODIFIED to clarify the basis for the jurisdictional dismissal, we AFFIRM the initial decision.2 BACKGROUND ¶2For reasons unrelated to her medical conditions, the appellant had been teleworking full time when, in November 2017, the agency notified her that it was requiring her to return to the office 3 days a week. Initial Appeal File (IAF), Tab 16 at 24, 27-29, Tab 20 at 14-15. The appellant protested the directive and asked to continue her full-time telework schedule. IAF, Tab 16 at 29, 37-39. The agency denied her requests. Id. ¶3On December 5, 2017, the appellant sent her supervisor a request for reasonable accommodation in the form of “100% Telework with personally tailored staggered return to office,” based on “[e]xtreme stress and issues 2 Because the appellant raised a claim of disability discrimination in this constructive suspension appeal, and the Board has now issued a Final Order dismissing the appeal for lack of jurisdiction, the agency is required, under Equal Employment Opportunity Commission regulations, to issue a notice under 29 C.F.R. § 1614.302(b) informing the appellant of her right to contact an equal employment opportunity counselor within 45 days of her receipt of the notice.2 stemming from the extreme stress caused by previous workplace assault, sexual harassment, hostile work environment and dispara[te] treatment.” Id. at 46-47. On December 7, 2017, the appellant’s supervisor instructed her to submit supporting medical documentation, to be reviewed by Federal Occupational Health (FOH), and to fill out an authorization form to allow FOH to communicate with her medical provider. Id. at 45, 150. ¶4The next day, December 8, 2017, the appellant submitted a telework agreement for approval, designating Tuesdays and Fridays as her regular telework days. IAF, Tab 29 at 6-7. On December 12, 2017, the appellant’s first -level supervisor informed her that there was no provision for “[m]edical [t]elework without an approved [telework] agreement,” that her telework agreement was not being approved because of performance and conduct reasons, that she was no longer eligible for telework, and that she would be informed when she would be allowed to request to telework again. Id. at 14. It was not until February 6, 2018, that the appellant’s supervisor invited her to submit a new agreement for 2 days of telework per week, pending a final decision on her reasonable accommodation request. Id. at 28. The appellant did not submit a new telework agreement. ¶5On January 18, 2018, the appellant provided the agency a note from her nurse practitioner, which stated, in part, as follows: It is my medical opinion that the [appellant’s] ability to work from home and avoid a hostile work environment would be significantly beneficial and speed up her recovery. With the ability to have a relatively stress-free environment or the ability to gradually return to the office environment while being consistent with medical and counseling appointments, Ms. Turner’s prognosis is good, especially if a good resolution to the conflict at work is found. IAF, Tab 16 at 17. FOH considered the medical note and, on February 5, 2018, advised the agency that “it is difficult to determine if this is really a disability issue in terms of the [Americans with Disabilities Act Amendments Act] or it is an interpersonal issue specific to her current workplace.” Id. at 18. FOH further3 advised that it had thrice attempted to contact the appellant’s nurse practitioner to get more information, but the nurse practitioner did not respond. Id. Two days later, on February 7, 2018, FOH updated its assessment, stating that it had spoken with the nurse practitioner, and based on that conversation there “appear[ed] to be a mix of bona fide medical issues plus interpersonal issues that are specific to her office.” Id. at 19. FOH advised that “[t]here is thus somewhat of a disability issue here” and recommended that the appellant be initially allowed to telework for 3 months and that her status be reassessed at that time, with updated medical documentation, should she request an extension. Id. ¶6On February 20, 2018, the agency requested that FOH clarify its letter, including what it meant by “somewhat of a disability.”3 See id. at 20. On March 15, 2018, FOH sent the agency a more detailed letter, explaining the appellant’s conditions and diagnoses and the major life activities affected. Id. at 20-21. FOH reiterated its recommendation that the appellant be permitted to telework for 3 months and that her status be reevaluated at the end of that time. Id. On March 19, 2018, the agency notified the appellant that her reasonable accommodation request was approved, effective March 26, 2018, and that she would be able to begin teleworking full time on that date. IAF, Tab 35 at 15. When March 26, 2016, arrived, the appellant’s supervisor notified her that she would need to have a new telework agreement approved before she could begin teleworking. Id. at 14. According to the agency, the appellant submitted a new telework agreement on April 2, 2018, and her supervisor approved it on April 4, 2018. IAF, Tab 20 at 8. The appellant, who had been using annual and sick leave and leave without pay (LWOP), and who was for some time classified as absent without leave (AWOL), was returned to duty in a full-time telework status. IAF, Tab 20 at 8, 17-27. 3 The agency apparently made this request in an email that does not appear to be in the record. The email is referenced in FOH’s March 15, 2018 letter, which is in the record. IAF, Tab 16 at 20. The agency also stated in its narrative response that it requested this clarification from FOH. Id. at 8. 4 ¶7The appellant filed this Board appeal on March 23, 2018, alleging that the agency forced her to use sick and annual leave and placed her in LWOP and AWOL status, rather than provide her with a reasonable accommodation. IAF, Tab 1 at 5. An administrative judge found that the appellant made a nonfrivolous claim of constructive suspension and was thus entitled to her requested hearing.4 IAF, Tab 12. The case was then reassigned to another administrative judge. IAF, Tab 14. The appellant withdrew her request for a hearing, IAF, Tab 31, and after the close of the record, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction, IAF, Tab 42, Initial Decision (ID). The administrative judge found that the appellant did not prove a constructive suspension because her absence was not attributable to any wrongful act by the agency. ID at 9-13. The administrative judge acknowledged that an agency’s unreasonable delay in providing a reasonable accommodation can amount to a denial of an accommodation, but she found that the appellant was responsible for the delay between her initial request for accommodation on December 8, 2017, and FOH’s receipt of the required information on February 7, 2018. ID at 9-10. She further found that the remainder of the delay was largely attributable to the agency seeking clarifying information from FOH and that the agency’s actions in this regard were reasonable.5 ID at 11-12. 4 The administrative judge provisionally determined that the appeal was properly construed as a constructive suspension appeal, rather than an enforced leave appeal, but reserved any ruling in that regard until after the close of the record. IAF, Tab 12 at 3. He also explained that, to the extent the appellant had raised a disability discrimination claim, that claim was not properly before the Board until the appellant established jurisdiction over her appeal. Id. at 3 n.1. 5 The administrative judge also found that the appellant did not prove a constructive suspension based on intolerable working conditions. ID at 12-13. Specifically, the administrative judge found that, even if the appellant reasonably believed she was subjected to a hostile work environment between 2013 and 2016, she presented no evidence that the conditions were intolerable during the period of absence at issue here, and any belief that the earlier hostility would continue into the present was, under the circumstances of this case, purely speculative. ID at 13. We agree with that portion of the administrative judge’s analysis.5 ¶8The appellant has filed a petition for review arguing that the administrative judges’ various actions during the course of the appeal were inconsistent with required procedures, that the administrative judges were biased, and that the initial decision incorrectly set forth the facts and the law. PFR File, Tab 1. The agency has filed a response to the petition, and the appellant has filed a reply. PFR File, Tabs 4-5. ANALYSIS ¶9The Board lacks jurisdiction over appeals of employees’ voluntary actions; however, it has always recognized that employee-initiated actions that appear voluntary on their face are not always so. Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 7 (2013). The Board may have jurisdiction over such actions under 5 U.S.C. chapter 75 as “constructive” adverse actions. Id. Like involuntary resignations, removals, and reductions in pay or grade, involuntary leaves of absence may be appealable to the Board under chapter 75 as constructive suspensions. Id., ¶ 8. To establish jurisdiction over a constructive suspension appeal, an appellant must prove that: (1) she lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that deprived her of that choice. Id. Assuming that the jurisdictional requirements of chapter 75 are otherwise met, proof of these two things is sufficient to establish Board jurisdiction. Id. The appellant was constructively suspended on some dates between February 8, 2018, and March 23, 2018. ¶10Having carefully reviewed the record, we conclude that the appellant lacked a meaningful choice in a majority of her absences between February 8, 2018, and March 23, 2018, and that those absences were due to the improper actions of the agency. As for the first element, the appellant provided evidence demonstrating a medical need for her to telework full time. The Board has found it “difficult to imagine” circumstances in which working outside of medical restrictions would6 be a viable option for Federal employees. Bean, 120 M.S.P.R. 397, ¶ 13. This case is no exception. Therefore, because the agency refused to allow her to telework consistent with her medical restrictions, the appellant lacked a meaningful choice in being absent from duty on the days she was not authorized to telework. ¶11As for whether the appellant’s involuntary absences can be attributed to the agency’s improper acts, the answer to that varies depending on the time period. For the reasons stated by the administrative judge, we agree that the appellant was responsible for the delay in providing medical evidence between her initial request for accommodation on December 8, 2017, and February 7, 2018, when FOH finally obtained sufficient information to make a recommendation on the appellant’s request and communicated that recommendation to the agency.6 ¶12We do not agree that the agency had a sufficient basis to delay implementing the telework accommodation after that time. It appears that the agency was confused by the line in the February 7, 2018 letter about there being “somewhat of a disability issue.” IAF, Tab 16 at 8, 20. However, the letter was perfectly clear about the appellant’s medical conditions, the effects of those conditions, and FOH’s recommendation that the agency accommodate the appellant with at least 3 months of telework. Id. at 19. The agency failed even to acknowledge FOH’s clear recommendation and chose instead to fixate on the phrase “somewhat of a disability issue,” the meaning of which was clear when considered in context. FOH’s March 15, 2018 follow-up letter connected the dots more explicitly, but the agency has not explained what exactly the February 7, 2018 letter was lacking as compared to the March 15, 2018 letter. Therefore, it has not justified that portion of the delay in returning the appellant to duty. ¶13Furthermore, even assuming that the February 7, 2018 letter lacked some information that the agency needed to process the appellant’s request, it was the 6 We agree with the administrative judge that the appellant did not prove that she requested accommodations at any time prior to December 8, 2017. ID at 10 n.2.7 agency’s decision to use FOH as its medical reviewer. To the extent that FOH failed to give the agency a clear assessment to begin with, the appellant should not bear the consequences. ¶14As for the delay after March 15, 2018, the agency has not explained why it decided to delay implementation of the accommodation until March 26, 2018. Nor is any reason for the delay apparent because the required accommodation was not difficult to implement. Accordingly, we find that the agency is responsible for that portion of the delay as well. ¶15As for the time period from March 26, 2018, forward, the further delay in implementation was due to the agency’s requirement that the appellant sign and submit a new telework agreement. IAF, Tab 35 at 14. This was a reasonable requirement that the agency communicated to the appellant in advance, yet the appellant waited a whole week, until April 2, 2018, to submit a telework agreement for approval. The agency then acted reasonably quickly in approving the telework agreement and returning the appellant to duty. Accordingly, we find that the appellant is responsible for this last portion of the delay. ¶16This leaves a total of 31 regular workdays7 (excluding the President’s Day holiday) between February 8, 2018, and March 23, 2018 (the last business day before March 26), for which the agency unreasonably delayed implementation of the full-time-telework accommodation. Therefore, we find that the appellant was involuntarily absent for at least some portion of this time period. The appellant’s nonconsecutive days of constructive suspensions are not appealable under 5 U.S.C. chapter 75. ¶17Under most circumstances, the appellant’s absences that were caused by agency’s failure to accommodate her between February 8, 2018, and March 23, 7 We recognize that this calculation is based on a 5-day per week work schedule and that the appellant may have been on a 4-day per week schedule at some point during the relevant time period. IAF, Tab 20 at 17-27, Tab 35 at 12. However, the appellant’s time cards reflect a 5-day per week schedule, and our calculation based on a 5 -day per week schedule does not affect the outcome in any event.8 2018, would constitute an appealable constructive suspension. See Yusuf v. U.S. Postal Service, 112 M.S.P.R. 465, ¶ 13 (2009) (finding that an employee’s absence for more than 14 days that results in a loss of pay may be a constructive suspension appealable under 5 U.S.C. §§ 7512(2) and 7513(d)); Reed v. U.S. Postal Service, 99 M.S.P.R. 453, ¶ 3 (2005) (same), aff’d, 198 F. App’x 966 (Fed. Cir. 2006). However, with limited exceptions not applicable here, the Board’s chapter 75 jurisdiction extends only to suspensions of more than 14 consecutive days. Mitchell v. Department of Transportation , 109 M.S.P.R. 480, ¶¶ 4-5 (2008); see, e.g., Gage v. Merit Systems Protection Board , 482 F. App’x 546, 549 (Fed. Cir. 2012) (finding no precedent for combining nonconsecutive suspensions of 14 days or less for purposes of finding Board jurisdiction); Giannetto v. Department of Transportation , 109 M.S.P.R. 522, ¶ 5-6 (2008) (same). For the reasons discussed below, the instant appeal does not satisfy that jurisdictional requirement. ¶18As stated above, the agency notified the appellant on February 6, 2018, that she was eligible to telework 2 days per week. IAF, Tab 29 at 28. The appellant does not allege that she would have been unable to telework twice per week even if she needed to absent herself for the remaining 3 days, and the agency cannot be held responsible for the appellant’s failure to avail herself of this opportunity. Therefore, the appellant has not shown that her absences for 2 days for each of the 6½ weeks at issue were involuntary; she could have, but chose not to, telework on those days. Depending on which days the appellant might have chosen to telework, and even if she varied her telework days from week to week, the appellant could not have had any more than 6 days of consecutive involuntary absence during this time period. ¶19In sum, the appellant has shown that the agency’s improper actions, the unwarranted delay in implementing her full-time-telework accommodation, necessitated her absence from work for approximately 18 days between February 7, 2018, and March 23, 2018. However, these 18 days of involuntary9 absence were nonconsecutive, such that the appellant could not meet the jurisdictional requirement of more than 14 days of consecutive absence. Therefore, the Board lacks jurisdiction over this appeal. The appellant’s arguments on petition for review regarding procedural errors and bias do not provide a basis to disturb the initial decision. ¶20The appellant argues that the administrative judges’ rulings during the course of the appeal were inconsistent with required procedures and that the administrative judges were biased against her. Petition for Review (PFR) File, Tab 1. Regarding the administrative judges’ rulings during the course of the appeal, the appellant asserts that the decision of the administrative judge initially assigned to her appeal to not remove himself from the appeal after acknowledging that he worked in the same office as the agency counsel harmed her in that she lost confidence in the Board to properly adjudicate her case. Id. at 6. The first administrative judge discussed the fact that he had previously worked for the agency 4 years prior to the appeal but noted that he did not know agency counsel or any other agency employee thus far named in the appeal. IAF, Tab 12 at 3-4. In any event, 4 days after the status conference in which the administrative judge disclosed this issue, the case was reassigned to another administrative judge. IAF, Tab 14. ¶21The appellant also argues that she was harmed by the administrative judge’s denial of her requests to reopen discovery and for an extension of time to submit her prehearing submission. PFR File, Tab 1 at 7. It is well settled that an administrative judge has broad discretion to regulate the proceedings before her, including the authority to rule on discovery motions. Defense Intelligence Agency v. Department of Defense , 122 M.S.P.R. 444, ¶ 16 (2015). We agree with the administrative judge that the appellant failed to establish good cause for reopening the discovery period or for failing to timely submit her prehearing submission. IAF, Tab 23 at 2. Notably, the administrative judge nonetheless granted, in part, the appellant’s request for an extension. Id. at 2-4.10 ¶22The appellant further argues that the administrative judge improperly denied some of her witness requests. PFR File, Tab 1 at 7-8. In her order and summary of the prehearing telephonic conference, the administrative judge stated that she approved four of the appellant’s witnesses, consisting of herself, two joint agency witnesses, and another witness. IAF, Tab 23 at 3-4. The administrative judge denied three other witnesses that the appellant requested because their proffered testimony appeared irrelevant, immaterial, or repetitive. Id. at 4. The order and summary of the telephonic prehearing conference noted that if either party disagreed with the summary, an objection or motion to supplement had to be filed by June 18, 2018. Id. at 6. No objection or motion to supplement was filed by either party. The appellant’s failure to timely object to rulings on witnesses precludes her from doing so on petition for review. White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 21 (2013). Furthermore, an administrative judge has wide discretion under 5 C.F.R. § 1201.41(b)(8), (10) to exclude witnesses when it has not been shown that their testimony would be relevant, material, and nonrepetitious. Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 8 (2015). In any event, the appellant waived her requested hearing, the appeal was decided based on the written record, and there is no indication that the administrative judge prevented the appellant from submitting statements from the witnesses she discusses on review. IAF, Tabs 31 -33; ID. ¶23The appellant additionally argues that neither administrative judge made special efforts to accommodate her as a pro se appellant, and that the second administrative judge erred by not holding a status conference immediately after issuing certain orders, some of which the appellant received late. PFR File, Tab 1 at 6-7. We find that the appellant has failed to show that either of the administrative judges’ actions during the course of the appeal were inconsistent with required procedures, and, contrary to her contention, the record shows that they did consider and accommodate her pro se status. IAF, Tabs 7, 12, 19, 23, 26.11 ¶24Regarding her claims of bias, the appellant argues that the administrative judges displayed favoritism toward the agency by (1) granting the agency an extension of 7 days to submit the agency file; (2) directing the agency to contact the Board’s employees with “whatever arrangements are needed”;8 (3) instructing the appellant not to submit the agency policy regarding reasonable accommodations;9 and (4) relying heavily on the agency file rather than the appellant’s signed declaration. Id. at 8. 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). Furthermore, an administrative judge’s conduct during the course of a Board proceeding warrants a new adjudication only if his or her comments or actions evince “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)); Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 19 (2016). Upon review of the record, we find no evidence of bias by either administrative judge. ¶25Accordingly, we deny the appellant’s petition for review and affirm the initial decision as expressly modified to clarify the basis for the jurisdictional dismissal. 8 The administrative judge directed the agency to contact members of the Dallas Regional Office’s administrative staff regarding “whatever arrangements are needed for the video conference hearing.” IAF, Tab 23 at 4. There is nothing improper with an administrative judge taking such a step to ensure that video technology works properly on the day of the hearing and that both parties can fully participate in the hearing. 9 The agency’s reasonable accommodations policy is in the record as part of the agency file. IAF, Tab 16 at 199-249. Thus, it was unnecessary for the appellant to also submit it. 12 NOTICE OF APPEAL RIGHTS10 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: 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.13 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any14 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s15 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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. 16 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.17	Turner_KimberlaDA-0752-18-0253-I-1_Final_Order.pdf	2024-08-21	KIMBERLA TURNER v. DEPARTMENT OF DEFENSE, MSPB Docket No. DA-0752-18-0253-I-1, August 21, 2024	DA-0752-18-0253-I-1	NP
665	https://www.mspb.gov/decisions/nonprecedential/Randall_Ronald_R_CH-0752-18-0484-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RONALD RAY RANDALL, Appellant, v. DEPARTMENT OF THE AIR FORCE, Agency.DOCKET NUMBER CH-0752-18-0484-I-1 DATE: August 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ronald Ray Randall , Fowler, Ohio, pro se. Jillian C. Kaido , Warner Robins, Georgia, for the agency. Keshat S. Lemberg , Vienna, Ohio, 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 his attorney refused to include “four critical factors” in closing arguments that would have changed the result below, and instead presented some arguments with which 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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 disagreed. 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. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you3 were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: 4 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Randall_Ronald_R_CH-0752-18-0484-I-1_Final_Order.pdf	2024-08-20	RONALD RAY RANDALL v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. CH-0752-18-0484-I-1, August 20, 2024	CH-0752-18-0484-I-1	NP
666	https://www.mspb.gov/decisions/nonprecedential/Taylor_Faye_D_DC-0752-22-0665-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FAYE DENISE TAYLOR, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DC-0752-22-0665-I-1 DATE: August 20, 2024 THIS ORDER IS NONPRECEDENTIAL1 Daniel K. Gebhardt , Esquire, Washington, D.C., for the appellant. Richard F. Kane , 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. REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her alleged involuntary retirement 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 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, a GS-13 Financial Analyst employed with the Chief of Information Office in Fort Belvoir, Virginia, sustained a work-related injury on March 9, 2017. Initial Appeal File (IAF), Tab 5 at 15, Tab 11 at 9. On October 18, 2018, after the Office of Workers Compensation Program (OWCP) terminated her benefits and she exhausted all her leave, she applied for retirement, which was effective October 31, 2018. IAF, Tab 1 at 6, Tab 5 at 17- 20, Tab 8 at 4, Tab 11 at 13-15. On August 25, 2022, the agency issued a final decision on the appellant’s mixed case equal employment opportunity (EEO) complaint, finding that the appellant failed to prove her constructive discharge (involuntary retirement) claim based on disability discrimination.2 IAF, Tab 1 at 8-16. On September 23, 2022, the appellant timely filed her Board appeal. Id. at 4. ¶3The administrative judge issued a jurisdictional order advising the appellant of what she must allege to establish the Board’s jurisdiction and directed her to file evidence and argument regarding the issue of jurisdiction. IAF, Tab 4. In response, the appellant submitted an affidavit in which she alleged that she submitted a reasonable accommodation request for full-time telework along with supporting medical documentation in January 2018, but that the agency failed to act on her request until October 25, 2018, shortly before the effective date of her retirement. IAF, Tab 5 at 17-19. She alleged that, in its October 25, 2018 memorandum, the agency purported to deny her reasonable accommodation request, requested that she submit additional medical documentation, and threatened her with absence without leave. Id. at 18-19. The agency filed a response, disputing the appellant’s contention that it failed to act on her reasonable accommodation request before October 2018 by presenting evidence 2 The final agency decision stated that the appellant’s other claims in her original EEO complaint were pending before an Equal Employment Opportunity Commission (EEOC) administrative judge. IAF, Tab 5 at 15.2 that it denied her request for full-time telework on January 31, 2018, based on its determination that the essential duties of her position required her presence in the workplace. IAF, Tab 11 at 12, 108-11. It also presented evidence of documentation submitted by the appellant from her neuropsychologist dated March 22, 2018, indicating that the appellant would benefit from a return to telecommuting but that the neuropsychologist would revise her recommendation in 6 weeks. Id. at 107. The agency also submitted a letter from the Office of Workers Compensation Program (OWCP) dated June 19, 2018, notifying the appellant that it would be terminating her OWCP benefits based on the opinion of an OWCP contract physician that she was fit to return to duty. Id. at 13, 92-93. ¶4Without holding a hearing, the administrative judge dismissed the appeal for lack of jurisdiction. IAF, Tab 28, Initial Decision (ID). Concerning the appellant’s claim of involuntary retirement based on disability discrimination, she found that the appellant failed to make a nonfrivolous allegation that the agency unreasonably denied her reasonable accommodation request for full-time telework. ID at 11-12. She reasoned that the appellant failed to provide updated medical documentation after March 2018 and failed to allege that, contrary to the agency’s assertions, she was able to continue performing the essential duties of her position via telework as a reasonable accommodation. ID at 11-12. ¶5The appellant has filed a timely petition for review, arguing, among other things, that the administrative judge erred by making factual determinations based on the agency’s submissions and in dismissing her appeal without holding a hearing. Petition for Review (PFR) File, Tab 5 at 3-8. She expressly disputes the agency’s assertion that she failed to provide updated medical documentation after March 2018 and its proffered reasons for why she could not telework in her position.3 PFR File, Tab 5 at 5-8, Tab 8 at 5. The agency has responded in 3 In support of her contentions, the appellant submits excerpts from witness testimony at her 4-day hearing before an EEOC administrative judge in June 2023, which she asserts was not available prior to the issuance of the initial decision on July 25, 2023. PFR File, Tab 5 at 4-5, Tab 8 at 8-12. This evidence is immaterial to our disposition in this3 opposition to the appellant’s petition for review, PFR File, Tab 6, and the appellant has replied to the agency’s response, PFR File, Tab 8. ANALYSIS ¶6An employee-initiated action, such as a retirement, is presumed to be voluntary, and thus outside the Board’s jurisdiction. See Vitale v. Department of Veterans Affairs , 107 M.S.P.R. 501, ¶ 17 (2007). An involuntary retirement, however, is equivalent to a forced removal and therefore within the Board’s jurisdiction. Garcia v. Department of Homeland Security , 437 F.3d 1322, 1328 (Fed. Cir. 2006) (en banc). When allegations of discrimination are alleged in connection with a determination of voluntariness, such evidence may only be addressed insofar as it relates to the issue of voluntariness and not whether the evidence would establish discrimination as an affirmative defense. Pickens v. Social Security Administration , 88 M.S.P.R. 525, ¶ 6 (2001). Thus, evidence of disability discrimination or reprisal goes to the ultimate question of coercion. Id. ¶7The elements of a prima facie case of disability discrimination based on a failure to accommodate include a showing that the appellant is a qualified individual with a disability, that the action appealed was based on her disability, and, to the extent possible, an articulation of a reasonable accommodation under which the appellant believes that she could perform the essential duties of her position or of a vacant position to which she could be reassigned. Id., ¶ 7; see also Haas v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 28-29; Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶¶ 35-42. Ultimately, the appellant must prove that she is a qualified individual with a disability, meaning that she can perform the essential functions of her position with or without reasonable accommodation. Pickens, 88 M.S.P.R. 525, ¶ 7. However, to meet her burden of proof with respect to establishing a prima facie case, the appellant need merely articulate a reasonable accommodation under appeal. 4 which she believes she could perform the essential duties of her position or of a vacant position to which she could be reassigned. Id. ¶8Once the appellant presents nonfrivolous allegations of Board jurisdiction, she is entitled to a hearing at which she must prove jurisdiction by preponderant evidence. Garcia, 437 F.3d at 1344. In determining whether the appellant has made a nonfrivolous allegation of jurisdiction entitling her to a hearing, an administrative judge may consider an agency’s documentary submissions; however, to the extent the agency’s evidence contradicts the appellant’s otherwise adequate prima facie showing of jurisdiction, the administrative judge may not weigh evidence and resolve conflicting assertions, and the agency’s evidence may not be dispositive. Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). ¶9Here, the appellant has raised nonfrivolous allegations of Board jurisdiction. IAF, Tabs 1, 5; PFR File, Tabs 5, 8. She submitted an affidavit in which she alleged that her retirement was involuntary because the agency denied her request for telework as a reasonable accommodation that would have permitted her to continue working despite her medical conditions. IAF, Tab 5 at 15-17. This suffices as a nonfrivolous allegations of involuntary retirement based on disability discrimination sufficient to warrant a jurisdictional hearing. E.g., Carey v. Department of Health and Human Services , 112 M.S.P.R. 106, ¶ 7 (2009); see Pickens, 88 M.S.P.R. 525, ¶ 7. ¶10The administrative judge, however, did not provide the appellant with an opportunity for a jurisdictional hearing. Instead, relying on the agency’s assertions and evidentiary submissions, she concluded that the appellant did not provide sufficient medical documentation to support her reasonable accommodation request. ID at 11. This was error because an administrative judge may not weigh evidence or resolve conflicting assertions regarding disputed facts material to the question of jurisdiction without affording the appellant the opportunity for a hearing. Carey, 112 M.S.P.R. 106, ¶ 8; Ferdon, 60 M.S.P.R. at 329-30. Furthermore, in finding that the appellant failed to rebut5 the agency’s decision that telework was not feasible given the essential duties of her position on a more-than-conclusory level, the administrative judge erred in imposing a greater burden of proof upon the appellant than required by the Board’s case law.4 ID at 11-12; see Pickens, 88 M.S.P.R. 525, ¶ 7. Therefore, we find that the administrative judge erred in denying the appellant the opportunity for a jurisdictional hearing.5 ¶11In response to the appellant’s petition for review, the agency argues that the September 27, 2023 decision of an Equal Employment Opportunity Commission (EEOC) administrative judge on the appellant’s non-mixed EEO complaint collaterally estops the appellant from pursuing her claim of involuntary retirement based on disability discrimination before the Board. PFR File, Tab 6 at 20-21, 24-35. Collateral estoppel, or issue preclusion, is appropriate when: (1) an issue is identical to that involved in the prior action; (2) the issue was actually litigated in the prior action; (3) the determination on the issue in the prior action was necessary to the resulting judgment; and (4) the party precluded was fully represented in the prior action. Kroeger v. U.S. Postal Service , 865 F.2d 235, 239 (Fed. Cir. 1988); Otterstedt v. U.S. Postal Service , 96 M.S.P.R. 688, ¶ 10 (2004). An EEOC appeal does not have to involve the same cause of 4 Even if the appellant’s allegations below concerning the feasibility of telework were insufficiently specific to meet the Board’s nonfrivolous standard, see 5 C.F.R. § 1201.4(s), we find that the appellant meets this standard based on her pleadings on review, see PFR File, Tab 8 at 5; s ee generally Pirkkala v. Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016 (stating that the Board will consider submissions on review that are relevant to the issue of Board jurisdiction). 5 We see no reason to disturb the administrative judge’s conclusion that the appellant did not raise nonfrivolous allegations that she suffered harassment or intolerable working conditions that rendered her retirement involuntary. ID at 12-13; see Markon v. Department of State , 71 M.S.P.R. 574, 577 (1996) (explaining that 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). However, if any argument or evidence presented by the appellant on remand concerning her failure to accommodate claim affects the administrative judge’s analysis of her claim of harassment or intolerable working conditions, she should address such argument or evidence in the remand initial decision.6 action at issue in a Board appeal for collateral estoppel to apply, but the legal matter raised must involve the same set of events or documents and the same bundle of legal principles that contributed to the rendering of the first judgment. See Tanner v. U.S. Postal Service , 94 M.S.P.R. 417, ¶ 11 (2003); Dorsey v. Department of the Air Force , 78 M.S.P.R. 439, 444-45 (1998). ¶12Collateral estoppel may only be applied when there is a final judgment in the previous litigation. See Zgonc v. Department of Defense , 103 M.S.P.R. 666, ¶ 6 (2006), aff’d, 230 F. App’x 967 (Fed. Cir. 2007). In her December 11, 2023 reply to the agency’s response to her petition for review, the appellant asserted that she intended to file an appeal of the decision to the EEOC’s Office of Federal Operations within the deadline for appeal. PFR File, Tab 8 at 4. Based on the appellant’s assertion and the deadline for appeal set forth in the administrative judge’s decision, we find insufficient evidence to conclude that a final judgment has been issued in the appellant’s non-mixed EEO matter.6 PFR File, Tab 6 at 33, Tab 8 at 4. Therefore, assuming, without deciding, that all other collateral estoppel requirements are met with respect to the EEOC administrative judge’s decision, we decline to apply collateral estoppel at this time. Cf. Zgonc, 103 M.S.P.R. 666, ¶ 6 (declining to dismiss an appellant’s Board appeal on collateral estoppel grounds when the Board had not yet ruled on the appellant’s petition for review on her first appeal). 6 The EEOC administrative judge’s September 27, 2023 decision indicates that the agency was required to issue a final order within 40 calendar days of receipt of the hearing file and decision, and, after receipt of the agency’s final order, the complainant would have 30 days to file an appeal to the EEOC’s Office of Federal Operations. PFR File, Tab 6 at 33. However, the decision stated that, if the agency failed to issue a final order, the appellant would have the right to file her own appeal any time after the conclusion of the agency’s 40-day period for issuing a final order. Id. Thus, we accept the appellant’s claim that the deadline for appeal had not yet passed.7 ORDER ¶13For the reasons discussed above, we remand this case to the regional office for a jurisdictional hearing on the appellant’s involuntary retirement claim.7 If, on remand, the administrative judge determines that the appellant’s resignation was involuntary and the Board has jurisdiction over this appeal, the administrative judge shall adjudicate the appellant’s discrimination claim on the merits under the substantive standards of antidiscrimination law. See Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶ 8 (2010); Carey, 112 M.S.P.R. 106, ¶ 9. ¶14On remand, the administrative judge should permit the parties to submit additional evidence and argument on the collateral estoppel issue, including whether there has been a final adjudication of the appellant’s EEO matter. If either party submits evidence of such, the administrative judge should consider the effect of such decision on the appellant’s involuntary retirement claim. See Dorsey, 78 M.S.P.R. at 450. The administrative judge should consider whether collateral estoppel should apply to the EEOC’s findings concerning disability discrimination or harassment and, even if collateral estoppel does not apply, whether the Board should give deferential effect to those findings. See Morman v. Department of Defense , 90 M.S.P.R. 197, ¶ 21 (2001). If the administrative 7 The appellant argues that the administrative judge erred by failing to rule on her motion for an extension of time to resolve discovery disputes, and she avers that the agency has still not responded to her discovery requests. PFR File, Tab 3; see IAF, Tab 27 at 3. We agree that the administrative judge erred by not issuing a ruling on the appellant’s request for an extension of time. See Beadle v. Department of the Army , 40 M.S.P.R. 193, 196 (1989). Nevertheless, the appellant submitted her motion over 4 months before the issuance of the initial decision, at which point the extension of time that she requested, i.e., 14 days, was well past. IAF, Tab 27 at 3; ID. There is no indication that she contacted the administrative judge to request a ruling on her motion, nor did she submit a motion to compel regardless of timeliness. See 5 C.F.R. § 1201.73(c)(1) (If a party fails or refuses to respond in full to a discovery request, the requesting party may file a motion to compel discovery). The appellant is free to file a motion to compel with the administrative judge on remand, but the motion would be untimely, see 5 C.F.R. § 1201.73(d)(3), and she must establish good cause for her delay, see 5 C.F.R. § 1201.55(c). 8 judge determines that the appellant’s involuntary retirement claims are wholly precluded, she need not hold a jurisdictional hearing. See Bryant v. Merit Systems Protection Board , 878 “F.3d 1320, 1328-29 (Fed. Cir. 2017). FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.9	Taylor_Faye_D_DC-0752-22-0665-I-1_Remand_Order.pdf	2024-08-20	FAYE DENISE TAYLOR v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-22-0665-I-1, August 20, 2024	DC-0752-22-0665-I-1	NP
667	https://www.mspb.gov/decisions/nonprecedential/Ferrell_Richard_D_SF-0714-23-0031-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RICHARD D. FERRELL, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-0714-23-0031-I-1 DATE: August 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Richard D. Ferrell , Moreno Valley, California, pro se. Eric LaZare , Esquire, San Diego, California, for the agency. Thomas L. Davis , Esquire, 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 upheld the removal action pursuant to 38 U.S.C. § 714.2 On petition for review, the appellant challenges the administrative judge ’s decision to sustain charges 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). failure to adhere to posted instructions and offensive, disrespectful, insolent, or inflammatory language, and his findings that he did not prove his harmful procedural error affirmative defense, that the Electronic Communications Privacy Act was inapplicable, and that the removal penalty was reasonable for the sustained misconduct. Petition for Review File, Tab 1. He also includes, for the first time on review, photographs of clothes, which he asserts he was wearing on July 8, 2022 (related to the charge of offensive, disrespectful, insolent, or inflammatory language). Id. at 4-5, 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. 5 C.F.R. § 1201.113(b). Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the first time with a petition for review absent a showing that it was unavailable before the record was closed before the administrative judge despite the party’s due diligence. Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The appellant has not made such a showing with respect to the photographs. Even if we consider this evidence, a different outcome is not 2 Neither party is challenging the applicability of 38 U.S.C. § 714 to this removal action. 2 warranted because it does not justify the inappropriate language used by the appellant in a subsequent email to his supervisor, as described in Specification A of the offensive, disrespectful, insolent, or inflammatory language charge. We have considered the appellant’s remaining arguments on review. We discern no error with the administrative judge’s analysis in the initial decision and his other prehearing rulings. We therefore affirm his decision to uphold the removal under 38 U.S.C. § 714. 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 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 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.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. 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	Ferrell_Richard_D_SF-0714-23-0031-I-1_Final_Order.pdf	2024-08-20	RICHARD D. FERRELL v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0714-23-0031-I-1, August 20, 2024	SF-0714-23-0031-I-1	NP
668	https://www.mspb.gov/decisions/nonprecedential/Croskey_Teresa_M_AT-3443-23-0228-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TERESA M. CROSKEY, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-3443-23-0228-I-1 DATE: August 20, 2024 THIS ORDER IS NONPRECEDENTIAL1 Teresa M. Croskey , Montgomery, Alabama, pro se. Karla Brown Dolby , Esquire, and Sophia Haynes , Decatur, Georgia, for the agency. Bob Boulware and Karen Rodgers , Montgomery, Alabama, 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. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). REMAND ORDER ¶1The appellant has filed a petition for review of the initial decision, which dismissed her 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 Atlanta Regional Office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge properly found that the appellant’s 10-day suspension and absence without leave (AWOL) status are not appealable adverse actions. ¶2On review, the appellant requests a hearing and questions the administrative judge’s finding of lack of jurisdiction over her appeal. Petition for Review (PFR) File, Tab 1 at 1. The administrative judge correctly found that suspensions of 14 days or less are not appealable adverse actions pursuant to chapter 75 of Title 5 of the U.S. Code. Initial Appeal File (IAF), Tab 9, Initial Decision at 1, 3-4; see 5 U.S.C. § 7512, 7513(d); Marks v. U.S. Postal Service , 78 M.S.P.R. 451, 454 (1998). Further, an employee’s placement in an AWOL status is not, by itself, an appealable matter. See Maki v. U.S. Postal Service , 41 M.S.P.R. 449, 453-54 (1989). To the extent that the appellant suggests that she is entitled to a hearing because her agency’s decision on her suspension informed her of Board appeal rights, it is well settled that the provision of Board appeal rights in an agency decision does not serve to confer jurisdiction on the Board when it does not otherwise exist. PFR File, Tab 1 at 1-2; IAF, Tab 1 at 11-12; see DeGrella v. Department of the Air Force , 2022 MSPB 44, ¶ 16 n.7; Covington v. Department of the Army, 85 M.S.P.R. 612, ¶ 9 (2000) . We remand the appeal for a determination of whether the Board has jurisdiction over possible other claims. ¶3We find that the instant appeal needs to be remanded for further proceedings because the appellant’s initial appeal alluded to other potential bases2 for the Board’s jurisdiction. IAF, Tab 1. An appellant must receive explicit information on what is required to establish an appealable jurisdictional issue. Burgess v. Merit Systems Protection Board , 758 F.2d 641, 643-44 (Fed. Cir. 1985). Neither the administrative judge’s orders, the initial decision, nor the agency’s submissions provided the appellant with notice of the jurisdictional requirements of each claim as discussed below. See Harris v. U.S. Postal Service, 112 M.S.P.R. 186, ¶ 9 (2009). ¶4In her initial filing, the appellant checked the box for alleging failure to restore, reemploy, or reinstate or improper restoration, reemployment, or reinstatement. IAF, Tab 1 at 3. The record contains evidence indicating that she sustained a compensable injury and that she was deemed partially recovered. Id. at 22, 33-34, 57, 61, 64-74, 102-109. However, the appellant has raised concerns about her restoration to duty in a light duty assignment. Id. at 19-20, 22, 27, 31-43, 61, 64, 73-74, 78-79, 140-41. Thus, she should receive notice regarding her jurisdictional burden in a restoration appeal filed pursuant to 5 C.F.R. § 353.304. ¶5Additionally, on her initial appeal form, the appellant indicated that she filed a whistleblowing complaint with the Office of Special Counsel (OSC) in March 2020. IAF, Tab 1 at 4. The administrative judge initially assigned to the appeal informed the appellant about the Board’s jurisdiction over whistleblower reprisal claims under 5 U.S.C. § 2302(b)(8) and (b)(9), and indicated the possibility of an individual right of action (IRA) appeal if she exhausted her administrative remedies before OSC. IAF, Tab 2 at 2-3 & nn.2-4, Tab 6 at 2. However, the administrative judge did not give the appellant explicit notice on how to establish jurisdiction over an IRA appeal or explain that she must show that she exhausted her OSC remedy as to the matters raised in her Board appeal. See Boughton v. Department of Agriculture , 94 M.S.P.R. 347, ¶ 4 (2003); see also Burgess, 758 F.2d at 643-44. On remand, the administrative judge should provide such explicit notice.3 ¶6The initial appeal form and the record indicate that the appellant is preference-eligible. IAF, Tab 1 at 2, 81-82. She referenced her status as a disabled veteran. Id. at 78-79. She also checked “No” when asked if the Department of Labor had decided on a complaint, but she did not complete any of the other questions in that section. Id. at 4. The acknowledgment order generally advised the appellant that the Board may have jurisdiction over a claim of discrimination based on uniformed service or veteran status, or a violation of veterans’ preference rights. IAF, Tab 2 at 2-3. But the appellant was not informed of the respective burdens of proof and different methods of proving each claim. On remand, the administrative judge should provide explicit notice on establishing jurisdiction over Uniformed Services Employment and Reemployment Rights Act and Veterans Employment Opportunity Act of 1998 claims. ¶7Finally, because the appellant checked the box for alleging “negative suitability determination” in her initial appeal filing, she should also receive notice of the applicable jurisdictional issues concerning a suitability action pursuant to 5 C.F.R. part 731. IAF, Tab 1 at 3. ¶8We therefore remand the appeal for the appellant to receive such information and to allow the parties to submit evidence and argument on jurisdiction. See Hudson v. Department of Veterans Affairs , 104 M.S.P.R. 283, ¶¶ 7-8, 18, 21-22 (2006). If the administrative judge determines that the Board has jurisdiction over any of these claims, she should proceed to adjudicate the appellant’s claims on the merits. 4 ORDER ¶9For 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	Croskey_Teresa_M_AT-3443-23-0228-I-1_Remand_Order.pdf	2024-08-20	TERESA M. CROSKEY v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-3443-23-0228-I-1, August 20, 2024	AT-3443-23-0228-I-1	NP
669	https://www.mspb.gov/decisions/nonprecedential/Kinteh_Monique_J_AT-844E-20-0345-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MONIQUE J. KINTEH, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-844E-20-0345-I-1 DATE: August 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Monique J. Kinteh , Lawrenceville, Georgia, 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 final decision of the Office of Personnel Management (OPM), denying her application for Federal Employees’ Retirement System (FERS) disability retirement. Generally, we grant petitions such as this one only in the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review 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 preference eligible GS-9 Clinical Nurse for the Department of Defense. Initial Appeal File (IAF), Tab 9 at 71. On August 27, 2018, the appellant tendered her resignation, citing the advice of her healthcare provider. IAF, Tab 7 at 7-8. Her resignation became effective September 21, 2018. IAF, Tab 7 at 8, Tab 9 at 71. Meanwhile, on or about August 18, 2018, the appellant filed an application for disability retirement, claiming disabling conditions of migraine headaches, fibromyalgia, polymyositis, post-traumatic stress disorder, adjustment disorder, depression, anxiety, osteoarthritis of both knees, asthma, hypertension, cardiac dysrhythmia, left wrist carpal tunnel, lumbar spondylosis, cervical spondylosis with reverse lordosis, sciatica, obstructive sleep apnea, left knee chondromalacia, and a traumatic brain injury (TBI). IAF, Tab 8 at 61-66. On April 12, 2019, OPM issued an initial decision denying the appellant’s application on the basis that she failed to show an occupationally disabling condition expected to last at2 least 1 year from the date of her application. Id. at 52-57. The appellant requested reconsideration, and on February 10, 2020, OPM issued a final decision affirming its initial decision. IAF, Tab 6 at 6-25. The appellant timely filed the instant Board appeal, challenging OPM’s determination. IAF, Tab 1 at 4-6. She waived her right to a hearing. IAF, Tab 13. After the close of the record, the administrative judge issued an initial decision affirming OPM’s final decision. IAF, Tab 21, Initial Decision (ID). Although he found that the appellant showed that she has suffered from the various conditions that she listed in her disability retirement application, he nevertheless concluded that the appellant failed to show that these conditions rendered her unable to provide useful and efficient service in her position. ID at 15-18. He also found that the appellant failed to show that several of her conditions had persisted for more than 1 year from the date of her application, and that the record failed to support a finding that accommodation of her conditions would be unreasonable. ID at 17-18. The appellant has filed a petition for review, disputing the administrative judge’s finding on the persistence of her claimed conditions and arguing that her employing agency failed to provide her reasonable accommodation and committed numerous other prohibited personnel practices against her. Petition for Review (PFR) File, Tab 1 at 6-7. She has attached several pieces of documentary evidence in support of her arguments. Id. at 8-31. OPM has filed a response to the petition for review. PFR File, Tab 4. ANALYSIS An employee bears the burden of proving by preponderant evidence her entitlement to disability retirement. Snow v. Office of Personnel Management , 74 M.S.P.R. 269, 273 (1997); 5 C.F.R. § 1201.56(b)(2)(ii). To qualify for disability retirement benefits under FERS, an individual must meet the following requirements: (1) she must have completed 18 months of creditable civilian3 service; (2) she must, while employed in a position subject to FERS, have become disabled because of a medical condition resulting in a deficiency in performance, conduct, or attendance, or if there is no such deficiency, the disabling medical condition must be incompatible with either useful and efficient service or retention in the position; (3) the disabling medical condition must be expected to continue for at least 1 year from the date the application for disability retirement is filed; (4) accommodation of the disabling medical condition in the position held must be unreasonable; and (5) she must not have declined a reasonable offer of reassignment to a vacant position. 5 U.S.C. § 8451; Christopherson v. Office of Personnel Management , 119 M.S.P.R. 635, ¶ 6 (2013); 5 C.F.R. § 844.103(a). The main issue in this appeal is whether the appellant’s claimed conditions resulted in a deficiency in performance, conduct, or attendance, or were incompatible with useful and efficient service or retention in her position. In his initial decision, the administrative judge found insufficient evidence to show that the appellant’s claimed conditions resulted in any actual service deficiency, and we agree. ID at 9-10, 17. He considered evidence that the appellant incurred approximately 238 hours of absence between January and August 2017. ID at 9-10; IAF, Tab 9 at 65-69. However, although 162 hours of this leave was related to the appellant’s April 15, 2017 TBI, there was no evidence that the remainder of the leave was attributable to any of her other claimed conditions. ID at 9-10, 17; IAF, Tab 7 at 12. Furthermore, we observe that the record evidence of absences ends 1 year before the appellant’s resignation, and there is nothing in the record to suggest that her attendance did not improve following her recovery from the TBI.2 Furthermore, we note that in her Supervisor’s Statement to OPM, the appellant’s supervisor denied that the 2 On April 25, 2018, the appellant was evaluated by a neuropsychologist, who opined that the April 15, 2017 injury resulted in a mild TBI to the appellant, the symptoms of which “would be expected to resolve within a couple of weeks to months after the injury.” IAF, Tab 8 at 74. The neuropsychologist found no indication from her evaluation that the appellant currently met the criteria for a neurocognitive diagnosis. Id. at 73.4 appellant had any deficiencies in performance, attendance, or conduct. IAF, Tab 8 at 63-64. Nor is there any evidence in the record, such as warnings, counselings, disciplinary actions, or negative performance appraisals, to suggest that such a deficiency existed. In fact, the appellant’s last rating of record prior to her resignation stated that her performance was fully successful. IAF, Tab 16 at 19-26. For these reasons, we agree with the administrative judge that the appellant did not prove that she exhibited any actual deficiency in service due to her claimed conditions. Nor is there sufficient evidence to conclude that the appellant’s conditions, alone or in combination, were incompatible with useful and efficient service or retention in her position. In his initial decision, the administrative judge considered a May 2, 2018 letter from the appellant’s Licensed Clinical Marriage and Family Therapist (LCMFT), which stated that the appellant suffered from numerous psychological disorders, including cognitive impairments, which affected her ability to do her job, and that the appellant “should be considered for permanent release of her duties for retirement.” ID at 14, 16; IAF, Tab 7 at 75-76. He also considered a June 19, 2020 letter from the LCMFT, which stated that the appellant’s TBI resulted in numerous psychological conditions, including cognitive impairments, that prevented her from doing her job, and that the appellant was “unable to provide useful and efficient service in the position of record.” ID at 15-16; IAF, Tab 17 at 56-57. However, the administrative judge found that the LCMFT’s letters were outweighed by other evidence, including the results of an April 25, 2018 neuropsychological evaluation, in which the doctor opined that the appellant’s cognitive functioning was generally within the normal range and that her complaints of cognitive difficulties were more likely attributable to her physical pain and mood symptoms than they were to her previous TBI.3 ID at 13, 16-17; 3 The initial decision reflects that the neuropsychological evaluation took place on March 27, 2018. ID at 13. The format of these records is somewhat confusing, but it appears to us that the appellant was seen for a consultation on March 27, 2018, during5 IAF, Tab 8 at 73-74. Although the neuropsychologist recommended several strategies for the appellant to reduce her symptoms, including effective pain management, compliance with her physician’s sleep recommendations, and engaging in healthy activities, she did not recommend that the appellant resign from her position with the agency. IAF, Tab 8 at 74. The administrative judge credited the neuropsychologist’s opinion over that of the LCMFT’s because the LCMFT appeared to have formed her opinion based solely on the appellant’s self-reporting of problems rather than a clinical evaluation, and it was not clear that the LCMFT had even seen the appellant at any point during the 2 years preceding the June 19, 2020 letter. ID at 15-16. The administrative judge also considered records of the appellant’s October 2018 contacts with a veterans’ crisis hotline, which the appellant called to ensure continuation of services after resigning her position and moving out of state. ID at 14-15. The Licensed Clinical Social Worker who responded reported that the appellant presented as coherent, alert, and oriented, with optimistic mood, good judgment and insight, and normal speech, and that the appellant showed no signs of acute distress. IAF, Tab 8 at 10-12. Finally, the administrative judge considered that the appellant had received a 100% service-connected disability rating from the Department of Veterans Affairs (DVA), but he found that this evidence was not dispositive regarding whether the appellant was disabled for purposes of FERS disability retirement, particularly because the record lacked detailed information about the basis for the rating. ID at 17; IAF, Tab 9 at 107; see Sachs v. Office of Personnel Management, 99 M.S.P.R. 521, ¶ 11 (2005) (stating that the Board will consider an award of benefits by the DVA, but it is not dispositive of an appellant’s entitlement to disability retirement benefits). We also note that the appellant’s 100% DVA disability rating dates back at least to December 2014, and that she which she was scheduled for an evaluation to take place on April 25, 2018. IAF, Tab 8 at 71-72. In any event, we find the discrepancy in dates to be immaterial.6 was able to perform successfully as a Clinical Nurse for several years after that. IAF, Tab 9 at 107. Furthermore, although this evidence is not dispositive either, we take note that the appellant’s application for Social Security disability benefits was denied. IAF, Tab 6 at 14; see Doe v. Office of Personnel Management , 109 M.S.P.R. 86, ¶ 22 (2008) (considering the denial of an application for Social Security disability benefits as relevant, but nonbinding, in a FERS disability retirement appeal). In sum, the administrative judge’s finding that the appellant was not disabled for purposes of FERS disability retirement is supported by the record, and the appellant, who has not contested this finding on petition for review, provides no basis for us to disturb it. The appellant does, however, contest the administrative judge’s finding that she failed to show that certain of her claimed conditions were expected to last more than a year from the date of her application. PFR File, Tab 1 at 6; ID at 17-18. The administrative judge reasoned that the record contained no evidence that the appellant continued to receive treatment for her mental health conditions after she filed her application. ID at 17. On petition for review, the appellant asserts, without any specific citations, that “medical evidence presented demonstrated that my conditions [have] lasted over one year.” PFR File, Tab 1 at 6. We find that the appellant’s argument presents no basis to disturb the initial decision because a petition for review must contain sufficient specificity to enable the Board to ascertain whether there is a serious evidentiary challenge justifying a complete review of the record . See Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992). Furthermore, we find that the appellant’s argument constitutes mere disagreement with the administrative judge’s findings on this issue and therefore does not warrant full review of the record by the Board. See Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133 -34 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam). As for the administrative judge’s findings that the appellant failed to show that her conditions could not be accommodated, the appellant does not appear to dispute7 this finding. ID at 18. In fact, the appellant’s petition could be read as being in agreement with this finding to the extent that the appellant protests the agency’s lack of reasonable accommodation efforts. PFR File, Tab 1 at 6-7. The remainder of the appellant’s petition for review sets forth allegations of wrongdoing by her employing agency. We interpret these to include allegations of whistleblower reprisal, sex discrimination, disability discrimination, retaliation for equal employment opportunity activity, retaliation for grievance activity, and discrimination based on uniformed service. Id. Although the Board might have jurisdiction over some of these claims if the appellant were to file an appeal against her employing agency, such as an individual right of action appeal, a constructive removal appeal, or an appeal under the Uniformed Services Employment and Reemployment Rights Act of 1994, we find that the Board lacks jurisdiction to consider these claims in the context of the instant disability retirement appeal against OPM. See Bagian v. Office of Personnel Management , 9 M.S.P.R. 541, 544-45 (finding that the Board lacked jurisdiction over the appellant’s discrimination claim when the only agency action under appeal was OPM’s denial of a disability retirement application and there was no evidence or allegation that OPM’s decision was based on discrimination). We have also reviewed the documentary evidence that the appellant has attached to her petition. However, the bulk of this evidence concerns her allegations of discrimination and retaliation, and we therefore find that it is immaterial to the outcome of the appeal. PFR File, Tab 1 at 9-26, 30-31. The Board will not grant a petition for review based on newly filed 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). Furthermore, all of this evidence predates the close of the record below, and the appellant has not shown that she was unable to submit it to the administrative judge despite her due diligence. See Clay v. Department of the8 Army, 123 M.S.P.R. 245, ¶ 6 (2016) (explaining that the Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence). The appellant has also submitted some evidence related to her continued mental health treatment following her resignation.4 PFR File, Tab 1 at 27-29. These documents could be relevant to the issues of whether the appellant was “disabled” within the meaning of 5 C.F.R. § 844.103(a)(2) and whether her claimed disabling conditions continued for more than 1 year under 5 C.F.R. § 844.103(a)(3), but these documents also predate the close of the record below, and the appellant has not explained why she failed to submit them previously. See Clay, 123 M.S.P.R. 245, ¶ 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 4 These documents consist of a list of medical and mental health appointments that the appellant scheduled between December 2018 and February 2021, and a June 22, 2020 letter from a Clinical Nurse Specialist at the mental health clinic where the appellant was being treated. PFR File, Tab 1 at 27-29. We note that the letter from the Clinical Nurse Specialist consists largely of verbatim excerpts from the June 19, 2020 letter from the LCMFT, contained in the record below. Compare PFR File, Tab 1 at 27, with IAF, Tab 17 at 56-57. Therefore, even if we were to consider this letter, we find that it would have minimal probative value. 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 filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If 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.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	Kinteh_Monique_J_AT-844E-20-0345-I-1_Final_Order.pdf	2024-08-20	MONIQUE J. KINTEH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-20-0345-I-1, August 20, 2024	AT-844E-20-0345-I-1	NP
670	https://www.mspb.gov/decisions/nonprecedential/Alvarez_Jorge_L_PH-844E-20-0023-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JORGE L. ALVAREZ, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER PH-844E-20-0023-I-1 DATE: August 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Kevin A. Graham , Esquire, Liberty, Missouri, for the appellant. Albert Pete Alston, Jr. , and 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 that denied his application for disability retirement under the Federal Employees’ Retirement System (FERS). Generally, we grant petitions such as this one only in 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On petition for review, the appellant argues that the record evidence establishes that he became disabled during his employment with the U.S. Postal Service. Petition for Review (PFR) File, Tab 3 at 7. He argues that the administrative judge failed to consider all of the documentation in the record, including information regarding his attendance and leave and medical evidence concerning his mental health and respiratory problems. Id. at 7-12. Finally, he challenges the administrative judge’s credibility determinations regarding the testimony of the appellant, his wife, and his former supervisor. Id. at 8-9, 12-13. The administrative judge properly considered both the objective medical evidence, contemporaneous to his Federal service and over the more than 2 years between his resignation and the hearing, and the appellant’s subjective accounts of his breathing and psychological symptoms in finding that the appellant failed to establish that he became disabled while employed in a position subject to FERS. Initial Appeal File, Tab 31, Initial Decision (ID) at 4-8; see Henderson v. Office of Personnel Management , 117 M.S.P.R. 313, ¶¶ 19-20 (2012) (stating that the Board will consider all relevant objective and subjective evidence in2 determining an appellant’s entitlement to disability retirement). Having reviewed the record evidence and considered his arguments on review, which largely constitute mere disagreement with the administrative judge’s findings, we agree that the appellant failed to establish his entitlement to disability retirement benefits. PFR File, Tab 3 at 7-14; ID at 4-8; see Henderson v. Office of Personnel Management , 109 M.S.P.R. 529, ¶ 8 (2008) (setting forth the criteria that an applicant must meet in order to qualify for disability retirement benefits); 5 C.F.R. § 844.103(a)(2). 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. 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 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.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. 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	Alvarez_Jorge_L_PH-844E-20-0023-I-1_Final_Order.pdf	2024-08-20	JORGE L. ALVAREZ v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-844E-20-0023-I-1, August 20, 2024	PH-844E-20-0023-I-1	NP
671	https://www.mspb.gov/decisions/nonprecedential/Boone_Derek_E_DC-0752-20-0439-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEREK E. BOONE, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER DC-0752-20-0439-I-1 DATE: August 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Keith Reid , Esquire, Virginia Beach, Virginia, for the appellant. Greg Allan Ribreau , Esquire, and Roderick Eves , Esquire, St. Louis, Missouri, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained the agency’s chapter 75 removal action. On petition for review, the appellant argues that (1) he was prejudiced by his inability to cross-examine a witness that failed to appear at the hearing and (2) the agency violated his due 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). process rights. Petition for Review (PFR) File, Tab 1 at 4-7. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the 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 alleges that he was prejudiced by the failure of a witness to appear at the hearing. PFR File, Tab 1 at 4-7. In this regard, he asserts that “the [a]gency had a witness that was a primary witness that failed to attend the hearing and therefore preventing the [a]ppellant the opportunity to confront that witness through cross examination.” Id. at 4 (grammar as in original). The appellant avers that, because of her nonappearance, the administrative judge should have “viewed negatively” prior written statements made by this witness. Id. at 5. Here, both parties sought the testimony of the subject witness, a former agency employee, and the administrative judge approved these requests. Initial Appeal File (IAF), Tab 9 at 7, Tab 10 at 7, Tab 11 at 3. Following a request from the agency, IAF, Tab 21 at 4-5, the administrative judge issued a subpoena for her appearance at the hearing, IAF, Tab 22 at 1. The subpoena was successfully served; however, the witness failed to appear, and, despite efforts, agency counsel was unable to reach her. IAF, Tab 23, Hearing Recording (HR) at 0:00:17 to2 0:01:13 (statement of agency counsel, part 6). After the appellant’s counsel expressed displeasure with the nonappearance, the administrative judge explained that, to the extent the appellant wished to obtain the testimony of this particular witness, he was willing to leave the record open. HR at 0:03:43 to 0:04:41 (statement of the administrative judge, part 6). However, the appellant does not allege, nor does the record indicate, that the appellant made any efforts to procure the testimony of this particular witness, such as seeking enforcement of the subpoena. See Porter v. Department of the Navy , 6 M.S.P.R. 301, 306-07 (1981) (finding unavailing the agency’s assertion that it was incumbent upon the deciding official to enforce a subpoena for the appearance of a particular witness and explaining that, to the extent the agency sought her testimony, it could have moved for an enforcement of its subpoena and/or requested that the record be kept open); see also 5 C.F.R. § 1201.85(a) (stating that if a person who has been served with a Board subpoena fails or refuses to comply with its terms, the party seeking compliance may file a written motion for enforcement with the judge or make an oral motion for enforcement while on the record at a hearing). Thus, a different outcome is not warranted. The appellant contends that the agency violated his due process rights by failing to provide him with “[n]otice of the prospective charges and an opportunity to be heard.” PFR File, Tab 1 at 4. In this regard, he reasserts that the deciding official (1) improperly received a copy of a prior removal decision drafted by another agency official and (2) improperly relied on the Douglas factors2 analysis contained therein. Id. at 4-5; IAF, Tab 7 at 27-31. He also alleges that the deciding official’s decision to remove the appellant was neither independent nor impartial. PFR File, Tab 1 at 5-6. For the reasons set forth in the initial decision, IAF, Tab 24, Initial Decision (ID) at 23-28, we find these assertions unavailing. Indeed, we agree with the administrative judge’s reasoned 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 conclusion that, insofar as the appellant also received a copy of the agency’s prior removal decision, the agency did not, as alleged, violate his due process rights. ID at 27-28; see Ward v. U.S. Postal Service , 634 F.3d 1274, 1280 (Fed. Cir. 2011) (explaining that a deciding official violates an employee’s constitutional due process rights when he relies on “new and material” ex parte information as a basis for his decision on either the merits of a proposed charge or the penalty to be imposed). Moreover, we discern no basis to disturb the administrative judge’s credibility-based finding that the deciding official properly conducted his own analysis of the Douglas factors and independently concluded that removal was an appropriate penalty. ID at 28; see Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the Board must give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing and may overturn such determinations only when it has “sufficiently sound” reasons for doing so). Accordingly, we affirm the initial decision. NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all 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	Boone_Derek_E_DC-0752-20-0439-I-1_Final_Order.pdf	2024-08-20	DEREK E. BOONE v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DC-0752-20-0439-I-1, August 20, 2024	DC-0752-20-0439-I-1	NP
672	https://www.mspb.gov/decisions/nonprecedential/Hager_Melissa__M_PH-0752-22-0202-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MELISSA M. HAGER, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER PH-0752-22-0202-I-1 DATE: August 20, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Melissa M. Hager , Jenkintown, Pennsylvania, pro se. Jaymin Parekh and Julie Tong , Baltimore, Maryland, 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 her removal. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to address the effect of the Board’s decisions in Haas v. Department of Homeland Security, 2022 MSPB 36, and Hager v. Office of Personnel Management , MSPB Docket No. PH-844E-23-0235-I-1, Initial Decision (Aug. 31, 2023), on the appellant’s disability discrimination claim, we AFFIRM the initial decision. DISCUSSION OF ARGUMENTS ON REVIEW The appellant has not shown that the administrative judge improperly denied her requested witnesses or motions to compel discovery. During the proceedings below, the appellant filed numerous discovery-related motions, including motions to subpoena witnesses, motions to compel production of documents, a motion for sanctions under Rule 37, a motion to suppress, and motions to compel interrogatories. Initial Appeal File (IAF), Tabs 26-27, 33-35, 37, 42-44. On August 15, 2022, the administrative judge issued a Discovery Order addressing in turn each of the appellant’s motions, as well as the agency’s own discovery-related motions. IAF, Tab 47. While we are mindful that the appellant was proceeding pro se at that time, we discern no abuse of discretion in the administrative judge’s rulings, and the appellant has not provided any specific objections. See Wagner v. Environmental Protection2 Agency, 54 M.S.P.R. 447, 452 (1992) (holding that the Board will not reverse an administrative judge’s rulings on discovery matters absent an abuse of discretion), aff’d, 996 F.2d 1236 (Fed. Cir. 1993) (Table). Regarding the appellant’s requests for witnesses, the appellant initially requested eight witnesses and further stated: “If the [administrative judge] feels these witnesses are unnecessary or irrelevant, [the appellant] will proceed without their expected testimony.” IAF, Tab 51. At the prehearing conference, the appellant withdrew her request for two of her eight proposed witnesses, and the administrative judge sustained the agency’s objections to the remaining six on grounds of relevance. IAF, Tab 56 at 9-10. We discern no abuse of discretion in that ruling. See Franco v. U.S. Postal Service , 27 M.S.P.R. 322, 325 (1985) (holding that the administrative judge has wide discretion under the Board’s regulations to exclude witnesses when it has not been shown that their testimony would be relevant, material, and nonrepetitious); 5 C.F.R. § 1201.41(b)(8), (10).2 The appellant has not shown that the administrative judge failed to accurately review her evidence. In her petition for review, the appellant alleges in general terms that the administrative judge did not “accurately or entirely review[] all of [her] submitted statements and evidence,” and that she made “several inaccurate statements in her initial decision . . . that prove she skimmed or misread [her] statements and evidence.” Petition for Review (PFR) File, Tab 1 at 5, 7. More specifically, she argues that the administrative judge erred in finding it “inconceivable” that she did not recall sending and receiving 100 emails related to her private business over the course of 20 months. PFR File, Tab 1 at 8-9; see ID at 16. She also contends that the administrative judge erred in failing to credit her statement that she was on break at 6:22 a.m. on December 23, 2019, when one of those emails 2 To the extent the appellant contends that the requested discovery and witness testimony would have yielded evidence concerning her disability and requests for accommodation, we find that further development of the record on those issues is unnecessary given the Board’s subsequent decision in her disability retirement appeal.3 was sent. PFR File, Tab 1 at 7-9; see ID at 13, 16. We discern no error in either finding, and the appellant’s mere disagreement with the administrative judge’s conclusions does not provide grounds for further review. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility); Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). The appellant has not established her claim of disability discrimination. The Board adjudicates claims of disability discrimination raised in connection with a removal action under the substantive standards of section 501 of the Rehabilitation Act. Haas v. Department of Homeland Security , 2022 MSPB 36, ¶ 28. The Rehabilitation Act has incorporated the standards of the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). Id. Therefore, we apply those standards here to determine if there has been a Rehabilitation Act violation. Id. In particular, 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. § 12111(8). 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). The Board has recently clarified that only a qualified individual with a disability is entitled to relief under the ADA for a claim of status-based discrimination or denial of reasonable accommodation. Haas, 2022 MSPB 36, ¶ 29. While the petition for review in this case was pending, an administrative judge determined in a separate proceeding that the appellant was entitled to an award of disability retirement. See Hager v. Office of Personnel Management ,4 MSPB Docket No. PH-844E-23-0235-I-1, Initial Decision (Aug. 31, 2023).3 In reaching that conclusion, he found that the appellant met her burden of showing that she was disabled from rendering useful and efficient service in her position prior to the effective date of her removal, and also that the agency was unable to accommodate her condition, either in her position or through reassignment to a less mentally demanding position. Id. Neither party filed a petition for review of that decision, which became the final decision of the Board on October 5, 2023. Consistent with our findings in that case, we conclude that the appellant has a disability but has not met her burden of showing that she is a qualified individual with a disability, i.e., one who is able to “perform the essential functions of the . . . position that such individual holds or desires,”4 with or without reasonable accommodation. For this reason, she cannot prevail on her claim of disability discrimination. See Haas, 2022 MSPB 36, ¶ 29. The administrative judge did not err in deferring to the deciding official’s penalty determination. The appellant further contends that, contrary to the initial decision, the removal penalty was excessive. When, as here, all of the agency’s charges have been sustained, the Board will review an agency-imposed penalty only to determine if the agency considered all of the relevant factors and exercised management discretion within tolerable limits of reasonableness. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306 (1981). In making that determination, the Board must give due weight to the agency’s primary discretion in maintaining employee discipline and efficiency, recognizing that the Board’s function is not to displace management’s responsibility but to ensure that 3 On October 17, 2023, the appellant filed a motion to accept new evidence in her removal appeal, specifically, the first page of the Office of Personnel Management’s decision approving her disability retirement application pursuant to the Board’s order. PFR File, Tab 13. Because the new evidence would not materially affect the outcome, we deny the motion. 4 The appellant has not identified an alternative position that she desires. See Haas, 2022 MSPB 36, ¶ 30.5 management discretion has been properly exercised. Campbell v. Department of the Army, 123 M.S.P.R. 674, ¶ 25 (2016). The administrative judge found below that the deciding official considered the relevant Douglas factors and that the removal penalty is not outside the bounds of reasonableness, and we discern no error in her findings. Accordingly, we find that the administrative judge appropriately deferred to the agency’s penalty determination. NOTICE OF APPEAL RIGHTS5 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. 5 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.6 Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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,7 and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 8 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.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. 9 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Hager_Melissa__M_PH-0752-22-0202-I-1_Final_Order.pdf	2024-08-20	MELISSA M. HAGER v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-0752-22-0202-I-1, August 20, 2024	PH-0752-22-0202-I-1	NP
673	https://www.mspb.gov/decisions/nonprecedential/Hanson-Hodge_Paula_N_DC-0432-14-0475-B-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD PAULA HANSON-HODGE, Appellant, v. SOCIAL SECURITY ADMINISTRATION, Agency.DOCKET NUMBER DC-0432-14-0475-B-1 DATE: August 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Paula Hanson-Hodge , Upper Marlboro, Maryland, pro se. Alexess Rea Smith and Jaymin Parekh , Esquire, Baltimore, Maryland, 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 remand initial decision, which sustained her performance-based removal. On petition for review, the appellant presents several arguments that implicate the issue which led 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). Board’s prior remand of this appeal—the question of whether the agency proved that the appellant’s performance was unacceptable prior to its 30-day performance assistance (PA) plan and 120-day opportunity to perform successfully plan. The appellant argues that her performance was successful for the many years leading up to the agency placing her on these plans and that the record includes some associated evidence that the administrative judge did not consider. Remand Petition for Review File, Tab 1 at 4-6, 10-11. She further argues that the agency did not produce substantial evidence that her performance was unacceptable and that some evidence reflects otherwise. Id. at 18-19, 22-23. In particular, the appellant points to her receipt of a within-grade increase (WIGI) during the relevant period. Although the administrative judge concluded that the WIGI was the product of an administrative oversight, the appellant disagrees. Id. at 12-15. She also challenges testimony about that issue, as well as her manager’s contemporaneous notes about the appellant’s performance, all of which the administrative judge found credible. Id. at 12-15, 23-26. The appellant also presents other arguments, such as ones about the necessity of the agency placing her on a PA plan. Id. at 20-22. She also reasserts her claim of reprisal for engaging in equal employment opportunity activity. Id. at 7-8, 11-12, 15-16, 27-30. 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 not2 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 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.3 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on4 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or5 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 6 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.7	Hanson-Hodge_Paula_N_DC-0432-14-0475-B-1_Final_Order.pdf	2024-08-19	null	DC-0432-14-0475-B-1	NP
674	https://www.mspb.gov/decisions/nonprecedential/Robinson_Brenda_S_DC-831M-20-0609-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BRENDA S. ROBINSON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-831M-20-0609-I-1 DATE: August 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Brenda S. Robinson , Fayetteville, North Carolina, pro se. Alison Pastor , Washington, D.C., for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her appeal as untimely filed without good cause shown for the delay. On petition for review, the appellant argues that she experienced technical problems with e-Appeal and did not realize until 2 months after attempting to file 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). her initial appeal electronically that she was unsuccessful. The appellant also argues that she is experiencing stress and anxiety related to these proceedings, and she addresses the merits of her case. 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	Robinson_Brenda_S_DC-831M-20-0609-I-1_Final_Order.pdf	2024-08-19	BRENDA S. ROBINSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831M-20-0609-I-1, August 19, 2024	DC-831M-20-0609-I-1	NP
675	https://www.mspb.gov/decisions/nonprecedential/Singh-Derewa_Chrishma_H_DA-0752-23-0102-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHRISHMA H. SINGH-DEREWA, Appellant, v. NATIONAL AERONAUTICS AND SPACE ADMIN, Agency.DOCKET NUMBER DA-0752-23-0102-I-1 DATE: August 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Chrishma H. Singh-Derewa , College Station, Texas, pro se. Christopher W. Miner , Houston, Texas, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner did not participate in the adjudication of this appeal. FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed for lack of jurisdiction his appeal of the agency’s decision to deny him a badge to access the Johnson Space Center. On petition for review,2 the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 2 With his petition for review, the appellant resubmits documents that are already part of the record below and thus are not new. Compare Petition for Review File, Tab 1 appellant argues that the administrative judge made several misstatements of fact and erred in finding that the Board lacks jurisdiction over this 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 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 at 16-19, with Initial Appeal File, Tab 23 at 48, 54, 71-72; see Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980) (finding that evidence that is already part of the record is not new); 5 C.F.R. § 1201.115(d) (providing that new evidence is evidence that was unavailable despite due diligence when the record closed). Therefore, we have not addressed those documents. 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 statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this 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	Singh-Derewa_Chrishma_H_DA-0752-23-0102-I-1_Final_Order.pdf	2024-08-19	null	DA-0752-23-0102-I-1	NP
676	https://www.mspb.gov/decisions/nonprecedential/Petek_John_F_SF-0752-20-0312-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOHN F. PETEK, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER SF-0752-20-0312-I-1 DATE: August 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 John Valente , Glens Falls, New York, for the appellant. Mickel-Ange Eveillard , Los Angeles, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed his constructive removal appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. For the reasons set forth below, we VACATE the administrative judge’s finding that the appellant submitted no credible evidence regarding his allegations of discrimination, and we AFFIRM the initial decision as MODIFIED to clarify and supplement the administrative judge’s jurisdictional analysis. Except as expressly indicated in this Final Order, the initial decision of the administrative judge is the Board’s final decision. BACKGROUND In a March 29, 2019 letter, the agency proposed the appellant’s removal from his Chief of Social Work Services position based on the following two charges: (1) failure to follow supervisory instructions (2 specifications); and (2) inappropriate conduct (5 specifications). Initial Appeal File (IAF), Tab 6 at 64-67. In a November 27, 2019 letter, the agency informed the appellant that a decision had been made to remove him effective December 2, 2019, based on the sole charge of inappropriate conduct. Id. at 18-20. In December 2019, the appellant appealed his removal to the Board. IAF, Tab 5 at 5; Petek v. Department of Veterans Affairs , MSPB Docket No. SF-0714- 20-0155-I-1, Initial Appeal File (0155 IAF), Tab 1. During the pendency of the appeal before the administrative judge, the agency issued a February 12, 20202 letter, informing the appellant of the following: the agency’s November 27, 2019 decision letter was rescinded; he would be reinstated as Chief of Social Work Services effective February 16, 2020; and he was expected to return to work on February 18, 2020. IAF, Tab 17 at 10. In a February 13, 2020 letter, the agency further notified the appellant that he would be detailed effective February 18, 2020, until further notice, and that, as previously instructed, he was not to have any contact with any social work staff or to conduct any social work service duties. Id. at 11. The appellant responded in a February 16, 2020 letter, declining the agency’s “offer of employment” and, in the alternative, resigning from his position immediately.2 IAF, Tab 6 at 62. The agency gave the appellant instructions for requesting leave if he was unable to return, id. at 28-52, but the appellant, through his representative, reiterated in a February 21, 2020 email that, “given the [a]gency’s position,” the appellant’s February 16, 2020 letter “serve[d] as his immediate resignation letter,” IAF, Tab 17 at 7. The appellant’s resignation was effective February 16, 2020. Id. at 5. The agency moved to dismiss the 0155 removal appeal. 0155 IAF, Tab 23 at 4. The agency explained that it began the process of rescinding the removal action because the removal decision letter had only referenced the inappropriate conduct charge and did not mention the failure to follow instructions charge. Id. at 5. The appellant opposed the motion, arguing among other things that because of his outstanding claims for compensatory damages based on discrimination, the agency’s rescission of the removal did not moot his appeal. 0155 IAF, Tab 25 at 4-5. The administrative judge agreed that the appeal was not moot because of the pending discrimination and retaliation claims involving potential damages and because the agency had not submitted sufficient proof regarding the payment of appropriate back pay. 0155 IAF, Tab 26 at 4. The agency thereafter submitted additional evidence regarding back pay. 0155 IAF, Tab 27. On February 27, 2 In the resignation letter, the appellant stated that, “[i]n addition to other factors[,] I am not currently medically cleared to work.” IAF, Tab 6 at 62.3 2020, the appellant notified the administrative judge that, based on the rescission of the removal and the agency’s statement regarding the processing of his back pay and benefits, he was withdrawing his appeal. 0155 IAF, Tab 28 at 4. In a February 27, 2020 initial decision, the administrative judge dismissed the appellant’s removal appeal as withdrawn. 0155 IAF, Tab 29, Initial Decision (0155 ID) at 1-2.3 In March 2020, the appellant filed the instant appeal of an allegedly involuntary resignation, and he requested a hearing. IAF, Tab 1 at 1-6. The administrative judge informed the appellant that the Board may not have jurisdiction over his appeal, apprised him of his jurisdictional burden regarding an involuntary resignation claim, and ordered him to file evidence and/or argument on the jurisdictional issue. IAF, Tab 2 at 2-4. The appellant responded. IAF, Tab 5. The agency moved to dismiss the appeal for lack of jurisdiction. IAF, Tab 12 at 4-9. Without holding the requested hearing, the administrative judge issued an initial decision granting the agency’s motion and dismissing the appeal for lack of jurisdiction. IAF, Tab 22, Initial Decision (ID) at 1, 15. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1.4 The agency has filed a response. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW We will consider the appellant’s factual allegations that he has raised for the first time on review. For the first time on review, the appellant alleges certain factual information regarding the circumstances surrounding the agency’s order for him to return to work, which he claims he was prevented from providing due to the administrative judge’s dismissal of his prior Board appeal. PFR File, Tab 1 3 The initial decision became the Board’s final decision on April 2, 2020, when neither party filed a petition for review by that date. 0155 ID at 2. 4 The appellant does not dispute, and we discern no reason to disturb, the administrative judge’s finding that the Board lacks jurisdiction over this appeal as an individual right of action appeal. PFR File, Tab 1 at 4-19; ID at 13-15.4 at 17-19. The appellant further claims for the first time on review that another employee, who had contacted a social work employee after having been told not to communicate with social work employees, did not receive punishment. Id. at 17. He asserts that this information was contained in the agency’s discovery response. Id. In addition, he argues that the parties were not able to complete discovery because the administrative judge did not rule on the appellant’s motion to compel discovery before issuing the initial decision. Id.; IAF, Tab 18. The Board generally will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previously available despite the party’s due diligence. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). Nevertheless, we will consider the appellant’s factual allegations described above insofar as they relate to the dispositive jurisdictional issue. See, e.g., Lovoy v. Department of Health & Human Services , 94 M.S.P.R. 571, ¶ 30 (2003) (considering the agency’s arguments raised for the first time on review because they implicated the Board’s jurisdiction). To the extent the appellant challenges the administrative judge’s denial of his motion to compel as moot and the administrative judge’s delay in so ruling in the initial decision, we discern no prejudice to the appellant’s substantive rights because he has not alleged that he has been precluded from raising any other relevant factual information on review. PFR File, Tab 1 at 17; ID at 3 n.3; see Thomas v. U.S. Postal Service , 116 M.S.P.R. 453, ¶ 4 (2011) (explaining that, to obtain reversal of an initial decision on the ground that the administrative judge abused his discretion in excluding evidence, the petitioning party must show on review that relevant evidence, which could have affected the outcome, was disallowed); 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) .5 We affirm, as modified, the administrative judge’s finding that the appellant has failed to nonfrivolously allege that he resigned due to intolerable working conditions. On petition for review, the appellant challenges the administrative judge’s finding that he failed to nonfrivolously allege5 that the agency made his working conditions so difficult (due to alleged harassment, discrimination, and retaliation for whistleblowing) that a reasonable person in his position would have felt compelled to resign. PFR File, Tab 1 at 4-12; ID at 5-9. In particular, the appellant argues that the administrative judge failed to consider the following allegedly wrongful actions taken by the agency prior to his resignation: (1) the investigation of him; (2) the March 2019 proposed removal; (3) the December 2019 removal action; and (4) in February 2020, during the pendency of his prior Board appeal, the agency’s rescission of his removal without rescinding the March 2019 proposed removal, failure to return him to his Chief of Social Work Services position, and order not to communicate with social work employees and not to perform social work duties.6 PFR File, Tab 1 at 4-12. The appellant further argues that the administrative judge failed to recognize the following alleged circumstances: he reasonably believed the agency was going to continue pursuing his removal based on the same charges underlying the proposed removal or based on new charges, id. at 5, 8-9; and he never returned to work in February 2020 because he resigned on the effective date of his reinstatement, id. at 6-7. In addition, the appellant reasserts his claim that he resigned because, based on his prior employment history with the agency and the limited information provided by the agency in February 2020 regarding his 5 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). 6 Regarding some of these actions, the appellant claims that the administrative judge failed to consider their probative value as recent actions that occurred close in time to his resignation. PFR File, Tab 1 at 4-6. The appellant further claims that the administrative judge failed to include some of these actions in considering his allegations of discrimination because they were not a part of the Equal Employment Opportunity Commission’s determination. Id. at 7-8, 11.6 return to work and detail assignment, he reasonably believed that he was “not returning to a healthy work environment.” Id. at 17-19; see IAF, Tab 1 at 6 (stating in his initial appeal that he was “returning to [an] intolerable and psychologically unsafe working environment”). Further, the appellant argues that the administrative judge improperly accepted the determination by the Equal Employment Opportunity Commission (EEOC) on the merits of his discrimination claims. PFR File, Tab 1 at 8, 11. For the following reasons, we modify the initial decision to clarify and supplement the administrative judge’s jurisdictional analysis regarding the appellant’s claim that he resigned due to intolerable working conditions. 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 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) . However, we find that the administrative judge improperly relied on Terban v. Department of Energy , 216 F.3d 1021, 1024 (Fed. Cir. 2000), in considering the relative probative value of the appellant’s allegations based on their proximity in time to his resignation. ID at 6, 8. In Trinkl v. Merit Systems Protection Board , 727 F. App’x 1007, 1010 (Fed. Cir. 2018),7 our reviewing court found that, in determining whether an employee nonfrivolously alleged circumstances such that a reasonable person in his position would have felt compelled to resign, the Board erred by, among other things, considering the relative probative value of his allegations over time. The court explained that weighing allegations as more or less probative is appropriate only following a jurisdictional hearing. Id. at 1010-11 (citing Terban, 216 F.3d at 1024). 7 The Board has held that it may rely on unpublished decisions of the U.S. Court of Appeals for the Federal Circuit if, as here, it finds the court’s reasoning persuasive. E.g., Vores v. Department of the Army , 109 M.S.P.R. 191, ¶ 21 (2008), aff’d, 324 F. App’x 883 (Fed. Cir. 2009).7 Further, we vacate the administrative judge’s finding that, given the EEOC’s determination that the actions at issue were not discriminatory, the appellant submitted no credible evidence regarding his allegations of discrimination. ID at 6-7. In Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994), the Board held that, in determining whether an appellant has made a nonfrivolous allegation of jurisdiction, an administrative judge may not weigh evidence and resolve conflicting assertions of the parties and the agency’s evidence may not be dispositive. Here, the appellant declared under penalty of perjury that the agency’s alleged harassment, as described in his two prior equal employment opportunity complaints, made his working conditions so difficult that he was forced to resign. IAF, Tab 5 at 1, 3, 19-21. Therefore, we find that the administrative judge improperly relied on the agency’s evidence of EEOC decisions and weighed the evidence in making a credibility finding. ID at 7 (citing IAF, Tab 12 at 10-20). After considering the totality of the alleged circumstances (including those raised on review) and assuming them to be true, we find that the appellant has failed to make a nonfrivolous allegation that he lacked a meaningful choice in the decision to resign and it was the agency’s wrongful actions that deprived him of that choice. Specifically, even viewing the appellant’s claims collectively as a series of escalating incidents dating back to August 2016 and culminating in his resignation in February 2020, we find that they do not rise to the level of coercion necessary to overcome the presumption that his resignation was voluntary. PFR File, Tab 1 at 4-12, 17-19; IAF, Tab 1 at 6, Tab 5 at 19-21, Tab 19 at 4-16; see, e.g., Brown v. U.S. Postal Service , 115 M.S.P.R. 609, ¶ 15 (viewing the appellant’s decision to retire in light of her claims of a continuing pattern of harassment dating back many years), aff’d, 469 F. App’x 852 (Fed. Cir. 2011) ; cf. Trinkl, 727 F. App’x at 1010 (finding that the Board should have viewed the employee’s claims collectively as a series of escalating incidents culminating in his retirement). 8 The Board has held that dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are generally not so intolerable as to compel a reasonable person to resign. PFR File, Tab 1 at 17-19; IAF, Tab 1 at 6; Miller v. Department of Defense , 85 M.S.P.R. 310, ¶ 32 (2000). Even if we consider the appellant’s statement that he was “not currently medically cleared to work” in his February 16, 2020 resignation letter, IAF, Tab 6 at 62, or his assertion on review that he “had [a] reasonable belief [that he] was not returning to a healthy work environment,” PFR File, Tab 1 at 18, we are not persuaded that he made a nonfrivolous allegation that the agency’s wrongful actions deprived him of a meaningful choice in the matter. The basis for the appellant’s contention of an unhealthy or unsafe work environment is not entirely clear.8 There was no medical documentation in the record to support his claim that he was not medically cleared to return to work, even after the agency gave him instructions if he was requesting leave or was otherwise unable to return. We are not persuaded that his allegations, standing alone, demonstrate that the agency’s actions were wrongful or that he was deprived of a meaningful choice in the matter. See, e.g., Moore v. U.S. Postal Service, 117 M.S.P.R. 84, ¶ 11 (2011) (noting that the appellant was entitled to a jurisdictional hearing in a constructive suspension appeal based upon intolerable working conditions if she alleges facts which, if proven, demonstrate that she put the agency on notice of the existence of the objectionable working conditions and requested assistance or remediation from the agency). 8 For example, the appellant states briefly on review that the return to work order and detail letter “raised reasonable anxiety and fear” because he had already been effectively removed from performing his duties from September 18, 2018, to December 2, 2019. PFR File, Tab 1 at 17. He also asserted before the administrative judge that the agency violated his “privacy and confidential personnel information” by disclosing to the union and its employees that an investigation of him was completed, the investigation concluded that he was not doing his job, and he was placed on a performance plan. IAF, Tab 19 at 7. He further alleged that the gossip in the workplace, which allegedly included discussions of the appellant’s sexual orientation, “impacted [his] reputation,” and “further isolate[ed]” him in the workplace. Id. at 14. 9 However, in the 0155 appeal, there is a February 13, 2020 note from the appellant’s clinical psychologist. 0155 IAF, Tab 19 at 78. This note stated that (1) the appellant began individual psychotherapy in January 2019 and “was disabled” due to a work-related psychological condition (major depression and generalized anxiety disorder), (2) he was discharged and returned to work in May 2019, (3) on February 11, 2020, the appellant “returned for evaluation and treatment due to work-related stressors” and suffered from dysthymic disorder and generalized anxiety disorder, (4) his current symptoms included, among other things, concentration and memory impairments, severe fatigue, severe insomnia, depressed affect, severe feelings of being treated unfairly at work, (5) he was receiving “individual and didactic therapy,” (6) his prognosis was “fair,” and (7) he will be unable to attend work-related responsibilities prior to March 14, 2020. Id. Although we take official notice of this note, 5 C.F.R. § 1201.64, a different outcome is not warranted. The appellant has not alleged that he presented the clinical psychologist’s note to the agency or otherwise conveyed the contents therein to the agency at any time before he resigned. Nor has the appellant alleged that he requested and was denied any type of leave or accommodation after receiving the agency’s February 12, 2020 letter, and he has failed to make a nonfrivolous allegation that it would have been futile to make such a request. Thus, we conclude that the appellant failed to make a nonfrivolous allegation that the agency’s actions were wrongful or otherwise deprived the appellant of a meaningful choice on the decision to resign. Cf. Hosozawa v. Department of Veterans Affairs , 113 M.S.P.R. 110, ¶ 7 (2010) (finding that the appellant nonfrivolously alleged that her resignation was involuntary because the agency denied her request for a reasonable accommodation (telecommuting) that her doctor said would have permitted her to continue to work full-time despite her mental conditions, and the agency did not contend that telecommuting was not feasible in light of the appellant’s responsibilities). 10 Further, the assumed fact that the agency did not rescind the March 2019 proposed removal and would have removed the appellant again does not rebut the presumed voluntariness of his ultimate choice to resign.9 See Baldwin v. Department of Veterans Affairs , 109 M.S.P.R. 392, ¶ 12 (2008). At the time he resigned, the agency was actively trying to return him to duty. To the extent that he believed that the agency’s efforts were lacking in any way, he could have raised such issues in opposing the agency’s attempts to moot his 2019 removal appeal instead of withdrawing that appeal and summarily resigning. Moreover, the appellant had the option of returning to work and contesting any alleged harassment, discrimination, and retaliation, as he had done before, and appealing any subsequent removal action to the Board. See Brown, 115 M.S.P.R. 609, ¶ 15 (finding that, instead of retiring based on her speculation that a disciplinary action might occur in the future, the appellant clearly had an option of contesting an action she thought was invalid if and when it did occur) ; Axsom v. Department of Veterans Affairs , 110 M.S.P.R. 605, ¶ 17 (2009) (finding that the appellant had the option to stand and fight the alleged discrimination, harassment, and retaliation rather than resign). We affirm as modified the administrative judge’s finding that the appellant has failed to nonfrivolously allege that his resignation was coerced because the agency had no reasonable grounds for threatening to remove him. The appellant further challenges on review the administrative judge’s finding that he failed to nonfrivolously allege that his resignation was coerced because the agency had no reasonable grounds for threatening to remove him. PFR File, Tab 1 at 12-19; ID at 9-13. Specifically, the appellant raises the following arguments: (1) the administrative judge failed to recognize that the agency never rescinded the March 2019 proposed removal and, thus, it was still pending against him; (2) the administrative judge incorrectly analyzed the 9 As discussed below, we affirm the administrative judge’s finding that the appellant has failed to nonfrivolously allege that his resignation was coerced because the agency had no reasonable grounds for threatening to remove him.11 evidence in considering whether the agency knew or should have known that it could not sustain the charge of failure to follow supervisory instructions; (3) even if the agency could support its contention that the appellant was instructed not to contact other social work employees, the alleged conduct occurred off-duty and off Government property; and (4) the administrative judge failed to consider that another employee who had engaged in the same alleged conduct had not been punished. PFR File, Tab 1 at 12-15, 17. None of these arguments warrants a different outcome. For example, even if we credit the appellant’s assertion that the agency did not rescind the notice of proposed removal, and thus, it was still pending, the record reflects that the agency has not issued a decision on the proposed removal. Thus, there was no action taken pursuant to 38 U.S.C. § 714 or 5 U.S.C. chapter 75 against the appellant at the time of his resignation. Even if the appellant is correct, and the agency would have decided to impose the removal based on one or both charges, the appellant could have challenged the removal action before the Board as he did in his earlier appeal, MSPB Docket No. SF- 0714-20-0155-I-1. 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). We have considered the appellant’s allegation that the administrative judge improperly analyzed the evidence. PFR File, Tab 1 at 13-15. In the initial decision, the administrative judge noted that the failure to follow supervisory instructions charge involved two allegations that the appellant failed to follow instructions not to contact his former staff. ID at 10. The administrative judge noted that the agency submitted evidence that the appellant met with his supervisor on September 18, 2018, and he was advised that he was being placed on a detail and instructed not to have contact with his former staff. Id. The administrative judge acknowledged that the appellant denied being instructed not12 to contact his former staff, but he concluded that “merely disputing the agency’s evidence does not amount to a non[]frivolous allegation that the agency had no basis for it.” ID at 11. The administrative judge improperly weighed the parties’ evidence and credited the agency’s evidence in assessing this claim. See Ferdon, 60 M.S.P.R. at 329. We modify the initial decision and clarify that we are not relying on the agency’s evidence in our assessment of this issue, nor are we weighing the parties’ evidence. However, the appellant’s assertion on review that “the evidence supports that he was never told he could not contact [s]ocial [w]ork employees” on September 18, 2018, PFR File, Tab 1 at 14-15, is undermined by his own submissions to the administrative judge, in which he admitted that he was instructed on multiple occasions, both before and after September 18, 2018, not to have any contact with staff. See, e.g., IAF, Tab 5 at 20 (stating that on April 13, 2017, he was “directed to not have contact with any social workers within or outside of the [agency],” and that on “9/26/2018 and 9/27/2018,” he “received emails from [the] Medical Center Director[] that stated[, among other things,] . . . ‘Cease and desist talking to all [Social Work Staff] until further notice’”), Tab 19 at 15 (acknowledging that the “Director issued instructions that [he] was not to have any contact with other social work employees[] for over 365 consecutive days”).10 Because the appellant’s own evidence reflects that he was told on multiple occasions not to contact other social work employees, we conclude that he did not make a nonfrivolous allegation that the agency could not substantiate a removal action based on a failure to follow supervisory instructions charge on the grounds of a lack of notice. The appellant alternatively asserts that the agency could not sustain the charge of failure to follow instructions because the alleged misconduct occurred off-duty and off Government property and any agency instruction would be 10 It appears that the “365 consecutive days” began on September 18, 2018, and ended on December 2, 2019. PFR File, Tab 1 at 17. 13 inapplicable. PFR File, Tab 1 at 15. We understand the appellant to be arguing that the agency’s instruction was unlawful. This argument is not persuasive. Indeed, the Board has upheld removal based on an employee’s failure to follow similar instructions. See, e.g., Lentine v. Department of the Treasury , 94 M.S.P.R. 676, ¶¶ 2-3, 5, 7-15 (2003) (affirming the removal penalty based on a sustained charge of failure to follow the direct order of management, which recited that the appellant was explicitly ordered not to contact another employee, but he emailed the employee via America Online messenger service less than 1 month after the order was issued). Thus, the appellant has not nonfrivolously alleged that the agency’s actions were wrongful in this regard. Finally, even if the agency did not punish another employee for similar alleged misconduct, PFR File, Tab 1 at 17, the issue of disparate penalty is one of several factors to consider in analyzing the penalty. See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (identifying a nonexhaustive set of penalty factors, including the consistency of the penalty with those imposed upon other employees for the same or similar offenses); see also Connor v. Department of Veterans Affairs , 8 F.4th 1319, 1326 (Fed. Cir. 2021) (stating that the Board must consider the relevant Douglas factors when considering the reasonableness of the penalty in a disciplinary action taken pursuant to 38 U.S.C. § 714). Even taking the appellant’s allegation of a disparate penalty as true, we are not persuaded that this single penalty factor weighing in the appellant’s favor14 constitutes a nonfrivolous allegation that the agency knew that it could not substantiate a potential future removal action on this basis.11 In conclusion, the appellant has not made a nonfrivolous allegation that he lacked a meaningful choice in the decision to resign and that it was the agency’s wrongful actions that deprived him of that choice. See Bean, 120 M.S.P.R. 397, ¶ 8. Accordingly, we affirm the dismissal of this appeal for lack of jurisdiction.12 NOTICE OF APPEAL RIGHTS13 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 11 In a footnote in the initial decision, the administrative judge stated that it was unnecessary to consider the appellant’s arguments regarding the second charge in the notice of proposed removal, involving allegations of inappropriate conduct. ID at 12 n.9. The appellant contends on review, in the context of a different claim, that the inappropriate conduct charge was without merit, and he asserts that the agency knew that there were no legal grounds to terminate him on this basis. PFR File, Tab 1 at 10- 12. Even if we assume for the purposes of our analysis that the agency could not substantiate the inappropriate conduct charge, the appellant has not nonfrivolously alleged that the agency knew that it could not sustain the failure to follow supervisory instructions charge or a removal action based on that single charge for the reasons described herein. Cf. Barthel v. Department of the Army , 38 M.S.P.R. 245, 252 (1988) (finding that the administrative judge erred by precluding the appellant from presenting evidence challenging the merits and legitimacy of the agency’s proposed chapter 43 action in an attempt to show that his retirement was the product of agency duress in proposing his separation). 12 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). 13 Since the issuance of the initial decision in this matter, the Board may have updated the notice 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 provide legal advice on which 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 at16 http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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,17 and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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.14 The court of appeals must receive your petition for 14 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, 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. 115-195,18 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that Tab 6any attorney will accept representation in a given case. 132 Stat. 1510. 19 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.20	Petek_John_F_SF-0752-20-0312-I-1_Final_Order.pdf	2024-08-19	JOHN F. PETEK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-0752-20-0312-I-1, August 19, 2024	SF-0752-20-0312-I-1	NP
677	https://www.mspb.gov/decisions/nonprecedential/Schiavone_Josephine_M_PH-3322-20-0277-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JOSEPHINE M. SCHIAVONE, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER PH-3322-20-0277-I-1 DATE: August 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Joseph Padolsky , Esquire, Boston, Massachusetts, for the appellant. Matthew J. Harris , Esquire, Concord, Massachusetts, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which dismissed her appeal for lack of jurisdiction. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of 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 vacate the administrative judge’s finding that the appellant failed to make a nonfrivolous allegation that she was the subject of a personnel investigation as defined under 5 U.S.C. § 3322, we AFFIRM the initial decision. On petition for review, the appellant argues for the first time that her resignation was involuntary. Petition for Review (PFR) File, Tab 1 at 5-6. She also argues for the first time that the Board has jurisdiction over her appeal challenging the notation on her Standard Form 50 (SF-50) “Resignation-ILIA” (resignation in lieu of an involuntary action) pursuant to 5 U.S.C. § 3322.2 Id. at 7. The agency has filed a response arguing that the appellant improperly raised her involuntary resignation argument for the first time on review and did not make a nonfrivolous allegation that her appeal was within the Board’s jurisdiction pursuant to 5 U.S.C. 3322. PFR File, Tab 3 at 20-27. 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. See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271 (1980). The appellant has 2 Section 1140 of the National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, signed into law on December 23, 2016, added 5 U.S.C. § 3322 to the U.S. Code to grant Board appeal rights to former employees to challenge an agency’s decision to place a notation of an adverse investigative or administrative finding in the employee’s official personnel folder.2 made no such showing regarding her new argument that her resignation was involuntary and she provides no explanation why she did not raise this claim in her initial appeal. PFR File, Tab 1 at 5-6; Initial Appeal File (IAF), Tab 1 at 3, 5. In any event, the appellant’s argument on review that she resigned pending the outcome of her proposed removal “so that she would not be adversely impacted in her efforts to obtain employment with another Federal agency” and that she would not have resigned if she had known that the agency would reference the proposed removal on her SF-50 is unavailing. PFR File, Tab 1 at 6; see Covington v. Department of Health & Human Services , 750 F.2d 937, 942 (Fed. Cir. 1984) (stating that it is well established that the fact that an employee is faced with an unpleasant situation or that her choice is limited to two unattractive options does not make the employee’s decision any less voluntary). Regarding the failure to respond to the administrative judge’s order to show cause that her appeal was within the Board’s jurisdiction, the appellant simply states that she was “under the mistaken impression that the deadline for opposing the [a]gency’s motion to dismiss was Wednesday, July 8, 2020.” PFR File, Tab 1 at 4 n.1. The administrative judge granted the appellant’s motion for a 10-day extension of the deadline to respond to the order to show cause and explicitly stated that the new deadline to file a response was the first business day after July 4, 2020, which was July 6, 2020. IAF, Tab 9 at 1. The appellant is responsible for her representative’s failure to raise the involuntary resignation claim on appeal or to file a jurisdictional response. See Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981) (stating that it is well settled that an appellant is responsible for the errors and omissions of her chosen representative). Having reviewed the appellant’s arguments on appeal, we find that she has provided no basis to find that she has made a nonfrivolous allegation3 that the 3 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s).3 Board has jurisdiction over her appeal. PFR File, Tab 1 at 4-7; see Maddox v. Merit Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985) (holding that the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation). The appellant makes a conclusory statement on review, without any supporting evidence or argument, that the Board has jurisdiction over her challenge to the “Resignation-ILIA” notation on her resignation SF-50 pursuant to 5 U.S.C. § 3322. PFR File, Tab 1 at 7. We agree with the administrative judge that the appellant has failed to make a nonfrivolous allegation that 5 U.S.C. § 3322 applies to her claim challenging her resignation SF-50. IAF, Tab 10, Initial Decision (ID) at 2-4. However, we vacate the administrative judge’s finding that the appellant failed to make a nonfrivolous allegation that she was subject to a personnel investigation4 because the appellant submitted evidence and argument that she resigned following receipt of notice of proposed removal for unacceptable performance under chapter 43. ID at 4; IAF, Tab 1 at 7-15. Instead, we find that the appellant’s allegations demonstrate that she is challenging a notation on her SF-50 regarding a proposed action and therefore she has not made a nonfrivolous allegation that the agency made a permanent notation in her official personnel record file regarding an adverse finding. See 5 U.S.C. § 3322(a). Because she has not raised nonfrivolous allegations of Board jurisdiction, she is not entitled to a jurisdictional hearing. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). 4 The definition of a personnel investigation includes “an adverse personnel action as a result of performance, misconduct, or for such cause as will promote the efficiency of the service under chapter 43 or chapter 75.” 5 U.S.C. § 3222(e)(2).4 NOTICE OF APPEAL RIGHTS5 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for 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.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.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. 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	Schiavone_Josephine_M_PH-3322-20-0277-I-1_Final_Order.pdf	2024-08-19	JOSEPHINE M. SCHIAVONE v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-3322-20-0277-I-1, August 19, 2024	PH-3322-20-0277-I-1	NP
678	https://www.mspb.gov/decisions/nonprecedential/Jackson_Travis_PH-0752-22-0084-I-2_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TRAVIS JACKSON, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER PH-0752-22-0084-I-2 DATE: August 19, 2024 THIS ORDER IS NONPRECEDENTIAL1 Adam K. Hobaugh , Esquire, Wexford, Pennsylvania, for the appellant. Allen Brooks , Esquire, and Candice Bang , Esquire, Quantico, 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. REMAND ORDER ¶1The agency has filed a petition for review of the initial decision, which reversed the appellant’s removal for a due process violation. For the reasons discussed below, we GRANT the agency’s petition for review, VACATE 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). initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. DISCUSSION OF ARGUMENTS ON REVIEW ¶2At the time relevant to this appeal, the appellant held the position of Program Analyst for the Department of Defense, Defense Counterintelligence and Security Agency. Jackson v. Department of Defense , MSPB Docket No. PH-0752-22-0084-I-1, Initial Appeal File, Tab 7 at 320. In March 2019, the agency suspended him for several charges that included a failure to work reported hours. Id. at 342. Then, in May 2020, the agency proposed his removal for a single charge of failure to work reported hours, with 73 underlying specifications. Id. at 320-340. Broadly speaking, the agency alleged that there were 73 days between March and September 2019 where the appellant did not work his entire 8-hour shift, amounting to a total of approximately 50 hours claimed but unworked. Id. at 336. ¶3The appellant submitted oral and written responses. Id. at 24-319. Subsequently, the deciding official sustained the charge and removal based on 71 of the 73 underlying specifications. Id. at 16-23. ¶4The appellant filed the instant appeal to challenge his removal. IAF, Tab 1. The administrative judge developed the record and held the requested hearing. Jackson v. Department of Defense , MSPB Docket No. PH-0752-22-0084-I -2, Refiled Appeal File (AF-2), Tab 27, Hearing Transcript, Day 1, Tab 29, Hearing Transcript, Day 2 (HT2). He then issued an initial decision, reversing the appellant’s removal on due process grounds. AF-2, Tab 35, Initial Decision (ID). The administrative judge concluded that the deciding official violated the appellant’s right to due process by determining that the appellant’s misconduct was intentional without prior notice that he would do so. ID at 2-6.2 ¶5The agency filed a petition for review. Jackson v. Department of Defense , MSPB Docket No. PH-0752-22-0084-I-2, Petition for Review (PFR) File, Tab 1.2 The appellant filed a response, and the agency replied. PFR File, Tabs 3-4. ¶6The fundamental rights of due process require that a tenured public employee receive oral or written notice of the charges against him, an explanation of the agency’s evidence, and an opportunity to respond, either in person or in writing. Cleveland Board of Education v. Loudermill , 470 U.S. 532, 538-39, 546-48 (1985). An agency’s failure to provide these rights deprives a tenured employee of his property right in his employment. Id. at 546. ¶7Under Ward v. U.S. Postal Service , 634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process rights when he relies upon new and material ex parte information as a basis for his decisions on the merits of a proposed charge or the penalty to be imposed. Singh v. U.S. Postal Service , 2022 MSPB 15, ¶ 34. Ward, Stone, and their progeny recognize, however, that not all ex parte communications rise to the level of a due process violation. Id. ¶8In Stone, the U.S. Court of Appeals for the Federal Circuit identified the following factors to be used to determine if ex parte information is new and material: (1) whether the ex parte information 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. Ultimately, we must determine “whether the ex parte communication is so substantial and so likely to cause prejudice that no 2 Although the initial decision did not include language ordering the agency to do so, the agency’s petition for review includes certification that it provided the appellant with interim relief. Compare ID at 7-15, with PFR File, Tab 1 at 26-29; see Stewart v. Department of Transportation , 2023 MSPB 18, ¶¶ 7-14 (discussing an agency’s statutory obligation to provide interim relief, even if an administrative judge mistakenly omits interim relief orders in an initial decision).3 employee can fairly be required to be subjected to a deprivation of property under such circumstances.” Id. ¶9The administrative judge identified the potential Ward/Stone due process issue in this case as one stemming from the deciding official’s testimony that she considered the appellant’s conduct intentional for purposes of her penalty analysis, despite the proposal to remove the appellant including no such allegation. ID at 2-3. The administrative judge found that the deciding official’s determination about the appellant’s intent was “new and material,” and that it “was so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.” ID at 4-6 (quoting Stone, 179 F.3d at 1377). Notably, though, the administrative judge’s due process analysis relies on the proposal letter, in isolation. It contains no discussion of whether the appellant’s intent was raised in materials attached to the proposal or the appellant’s response to the proposal. ID at 2-6. See Alvarado v. Department of the Air Force , 97 M.S.P.R. 389, ¶ 15 (2004) (holding that due process is satisfied when the proposal notice and any attachments to it, taken together, provide the employee with specific notice of the charges against him so that he can make an informed and meaningful reply). ¶10On review, the agency argues that the appellant was not denied due process. PFR File, Tab 1 at 9-23. We agree. The case at hand is similar to other cases where the Board found no due process violation. ¶11The agency’s charge and underlying specifications did not allege that the appellant’s misconduct was intentional—it was altogether silent about whether the misconduct was intentional or inadvertent. IAF, Tab 7 at 320-35. However, the proposal letter did include some references to the appellant’s state of mind at the time of the charged misconduct. For example, the proposal described how the appellant had admitted that he would oftentimes cut his workday short if he was outside on a break and did not want to walk back to the office, and how the appellant rationalized that this was offset by his answering of emails when he was4 off the clock. Id. at 336. The proposal further described how, when confronted by investigators from the Office of Inspector General (OIG) about shortcomings in his time and attendance, the appellant stated that he was surprised and thought he was doing a better job of tracking his time. Id. at 337-38. ¶12The OIG report of investigation underlying the proposed removal contains additional references to the appellant’s intent.3 According to that report, the appellant “stated he has never intentionally submitted an inaccurate time report,” and “stated he has never intentionally submitted a time report without reflecting approved leave due to low leave balance or for any other reason.” Id. at 394. He also “stated he was not intentionally shorting his hours each day and felt he was working all of his reported hours.” Id. at 396-97. Attached to the investigatory report is the appellant’s own handwritten affidavit that states, “[f]irst and foremost there was no intention of defrauding or theft of time.” Id. at 496. ¶13Moreover, in response to the proposed removal, the appellant addressed his state of mind again. Among other things, he indicated that he “never intentionally attempted to cheat [his] hours or time working.” Id. at 318. The appellant added that he was “not attempting in any way to avoid responsibility if [he had] unintentionally miscalculated his time,” and that he has “not ever intentionally attempted to get paid for work that [he] did not perform.” Id. In another instance, his response included the assertion that he was “never trying to cheat the agency out of time or money.” Id. at 121. From this evidence, it is plain that the appellant knew of the ex parte information at issue here, that is, the question of whether his charged conduct was intentional, and had an opportunity to respond, as, indeed, he actually did respond to it. Stone, 179 F.3d at 1377. 3 The proposal to remove the appellant repeatedly referenced the OIG report of investigation and it ends with a notation that materials relied on for the proposal were attached. IAF, Tab 7 at 341. Plus, we found no suggestion that the appellant was deprived of the OIG report during the response period. To the contrary, the appellant’s response to his proposed removal repeatedly references the “ROI,” which appears to be the appellant’s shorthand for the OIG report of investigation. E.g., id. at 33, 317. Thus, we find it more likely than not that the OIG report was given to the appellant alongside his proposed removal. 5 ¶14During the hearing, the deciding official testified about the Douglas factors that illuminated her decision about the appropriate penalty. HT2 at 164 (testimony of the deciding official); see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of factors that may be relevant for consideration in determining the appropriateness of a penalty). In reference to the first Douglas factor, i.e., the nature and seriousness of the offense, including whether the offense was intentional or inadvertent, the deciding official stated that “this was a strong factor for the basis of determining, you know, what was the offense, and examining that, as well as any intention behind that offense, which would determine any possibility of rehabilitation.” HT2 at 164 (testimony of the deciding official). During cross examination, the deciding official was asked about this factor again. She testified, “so the intention of this—it was a repeated offense, you know, inadvertent would have been once, twice. You know, this was over a period of time repeated behavior of not working the times that were reported.” Id. at 185-86. The appellant’s representative asked what that meant to the deciding official, who responded as follows: “this was now a more intentional of working whatever schedule [the appellant] determined was appropriate for that day.” Id. at 186. Later, the deciding official responded, “yes,” when asked if she “believed that the actions of [the appellant] were intentional and that’s what—that’s what [the first Douglas factor] reflects.” Id. at 200. ¶15As detailed above, the proposal to remove the appellant did not charge him with intentional misconduct, but the rest of the proposal letter and its supporting materials reference the appellant’s explanations, including his repeated claims that the alleged misconduct was either justified or unintentional. Moreover, the appellant’s response to the proposed removal is filled with the appellant’s assertions about the same. The deciding official’s testimony indicates that she rejected these explanations when weighing the Douglas factors. In so doing, the deciding official did not violate the appellant’s right to due process. See, e.g.,6 Mathis v. Department of State , 122 M.S.P.R. 507, ¶¶ 9-16 (2015); Grimes v. Department of Justice , 122 M.S.P.R. 36, ¶¶ 12-13 (2014); Wilson v. Department of Homeland Security , 120 M.S.P.R. 686, ¶¶ 10-12 (2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015). A deciding official does not violate an employee’s right to due process when they consider issues raised by an employee in a response to the proposed adverse action and then reject those arguments in reaching a decision. E.g., Mathis, 122 M.S.P.R. 507, ¶ 9. An employee is not entitled to know the particular weight the deciding official will attach to arguments raised in response to the proposed adverse action in advance of the final decision. Id. ¶16In conclusion, we find that the deciding official did not violate the appellant’s right to due process by considering and rejecting the appellant’s explanations for the alleged misconduct, which were described in the proposal letter, the materials in support of the proposal, and the appellant’s response to the proposal. On remand, the administrative judge must adjudicate the merits of the appellant’s removal, along with any other affirmative defenses the appellant has raised.4 4 Though unmentioned in the initial decision, we note that a prehearing conference summary indicated that the appellant intended to pursue claims of disability discrimination, harmful error, and unnamed violations of law. IAF, Tab 13 at 1. The administrative judge should ensure that the remand initial decision addresses whether the appellant has continued to pursue these claims and, if necessary, address them on the merits. See generally Hess v. U.S. Postal Service , 124 M.S.P.R. 40, ¶ 8 (2016 (recognizing that if an appellant raises an affirmative defense that could result in compensatory damages, that issue remains live even if the underlying appealable action is not).7 ORDER ¶17For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Jackson_Travis_PH-0752-22-0084-I-2_Remand_Order.pdf	2024-08-19	TRAVIS JACKSON v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-0752-22-0084-I-2, August 19, 2024	PH-0752-22-0084-I-2	NP
679	https://www.mspb.gov/decisions/nonprecedential/Rios_Luis_M_DC-1221-22-0033-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LUIS MANUEL RIOS, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER DC-1221-22-0033-W-1 DATE: August 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Alysa Williams , Esquire, and Heather White , Esquire, Washington, D.C., for the appellant. 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 The appellant has filed a petition for review of the initial decision, which denied his request for corrective action in this individual right of action (IRA) appeal. Generally, we grant petitions such as this one only in the following 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 (1) correct the administrative judge’s exhaustion findings concerning the appellant’s alleged Office of the Inspector General (OIG) complaint and the OIG investigation, (2) supplement the administrative judge’s analysis of the appellant’s equal employment opportunity (EEO) complaint, (3) clarify that the appellant’s disclosure regarding alleged discriminatory hiring practices could not have constituted a protected disclosure under 5 U.S.C. § 2302(b)(8) because it concerned Title VII violations, (4) find a modest retaliatory motive on the part of the relevant agency official and that the agency presented insufficient evidence of a similarly situated employee, and (5) otherwise clarify the administrative judge’s clear and convincing analysis, we AFFIRM the initial decision. BACKGROUND The appellant is employed as a Teacher at the Quantico Middle High School (QMHS), with the Department of Defense Education Activity (DoDEA) Americas Mid-Atlantic District, Department of Defense, in Quantico, Virginia. Initial Appeal File (IAF), Tab 1 at 8, 14. On August 2, 2018, the appellant sent an email to his second-level supervisor, then the Mid-Atlantic District Superintendent, alleging that there “seem[ed] to be a discriminatory pattern” in2 the way his first-level supervisor, the QMHS Principal, was hiring teachers and personnel after the former Assistant Principal retired. IAF, Tab 9 at 13. The appellant claimed that, during the prior 12-month period, “all new hires have been African American” except for two local internal transfers. Id. The appellant stated that he was concerned about “reverse discrimination” and that this looked “like a discriminatory federal prohibited practice,” id., and added that “[c]onsidering that [the QMHS Principal] is also African American this should raise a flag about the kind of issues we are having at QMHS,” id. at 14. On August 14, 2018, the appellant filed a complaint with the Office of Special Counsel (OSC) reiterating his concern about a practice of discriminatory hiring at QMHS. IAF, Tab 1 at 12-18. On September 14, 2018, the appellant filed an EEO complaint alleging, among other things, that the agency had discriminated against him when it did not select him for an extra duty assignment with the Math Honor Society, removed his teaching assignments and duties, and subjected him to harassment.2 IAF, Tab 15 at 148-52. On or around October 11, 2018, the DoDEA Americas Chief of Staff became aware of multiple complaints of harassment and a hostile work environment made against the appellant and requested that the agency’s OIG investigate the allegations. IAF, Tab 14 at 56. OIG conducted an investigation and issued a report concluding that, during the 2017-2018 school year and continuing into the 2018-2019 school year, the appellant had harassed DoDEA employees by creating a hostile work environment with acts of disruptive behavior, to include verbal and email intimidation, in violation of school policy.3 2 The record reflects that, in February 2018, the appellant completed a letter of intent form requesting a change of position for the 2018-2019 school year to his first choice of Virtual School Monitor, second choice of Spanish Teacher, or third choice of remaining in his current position as a Math Teacher. IAF, Tab 13 at 47. In June 2018, the agency reassigned the appellant to the position of Virtual School Facilitator for the 2018-2019 school year. IAF, Tab 15 at 262. On November 29, 2018, the agency reassigned the appellant back to his position as a Math Teacher. IAF, Tab 13 at 51. 3 The investigator interviewed 23 witnesses and found, among several things, that the appellant became disgruntled in 2017 after he was not selected for the Assistant3 Id. at 56-74. By letter dated December 10, 2019, the QMHS Principal proposed the appellant’s 5-day suspension for conduct unbecoming a Federal employee (8 specifications), based on OIG’s investigation report. Id. at 196-200. On February 21, 2020, the Community Superintendent for Fort Bragg/Cuba sustained the charge and suspension. Id. at 182-83. On January 31, 2019, Math Teacher C.S. complained to the QMHS Principal about an interaction she had with the appellant during a math department meeting the previous day. Id. at 258. C.S. alleged that, during a conversation with her and Math Teacher S.S., the appellant stated, among other things, that the QMHS Principal was to blame for the “entire mess” in the math department and alleged that C.S. was unqualified for her job. Id. The QMHS Principal investigated the complaint and, on February 6, 2019, issued the appellant a letter of reprimand (LOR) based on charges of (1) making false, malicious, or unfounded statements against other employees, supervisors, other officials or subordinates with the intent to destroy or damage the reputation, authority, or official standing of those concerned; and (2) lack of candor, for stating during his investigatory interview that C.S. interrupted his conversation with S.S. when the evidence indicated she did not. Id. at 258-61. On February 18, 2019, the appellant filed a second complaint with OSC alleging that the LOR was in retaliation for his first OSC complaint, his EEO complaint, and an OIG complaint that he stated he filed against C.S. and the Assistant Principal “for the fabrication of documents to support a selection giving an unfair advantage to [C.S.].” IAF, Tab 1 at 23. By letter dated August 16, 2021, OSC informed the appellant that it had terminated its inquiry into his Principal position, that he complained about positions being “stolen” from him after he was assigned to the Virtual School Facilitator position and not assigned to teach Spanish, that he used instructional time to gossip and complain about other teachers and QMHS administration, and alleged to students that a specific school employee had engaged in “reverse racism.” IAF, Tab 14 at 69-71. 4 allegations and notified him of his right to seek corrective action from the Board. Id. at 6-7. The appellant subsequently filed the instant, timely IRA appeal. The administrative judge notified the appellant of the applicable jurisdictional burden in IRA appeals and ordered him to file evidence and argument on the same. IAF, Tab 3. After considering the appellant’s responses, the administrative judge found that the appellant was raising the following alleged protected disclosures and protected activity: (1) the August 2018 email alleging that the QMHS Principal was engaging in a discriminatory pattern of hiring; (2) the August 2018 OSC complaint; (3) the September 2018 EEO complaint; and (4) the appellant’s OIG complaint. IAF, Tab 20 at 5-6. The administrative judge concluded that the Board had jurisdiction over (1) and (2), but the appellant’s September 2018 EEO complaint did not constitute protected whistleblowing under 5 U.S.C. § 2302(b)(8) and the appellant failed to exhaust with OSC his claim that the agency retaliated against him for filing an OIG complaint. Thus, the administrative judge concluded that the Board lacked jurisdiction over those claims. Id. at 6-9, 13-14. The administrative judge also found that the appellant had raised the following alleged personnel actions: (1) the February 7, 2019 LOR; (2) reassignment into a non-teaching position; and (3) an OIG investigation into allegations he had created a hostile work environment.4 Id. at 10. The administrative judge found that the Board had jurisdiction over the LOR, but that the appellant failed to exhaust with OSC any claim that he was reassigned in retaliation for whistleblowing or that the OIG investigation against him was undertaken in retaliation for protected activity. Id. at 10-13. 4 The administrative judge noted that the appellant had referenced a proposed suspension for “Conduct Unbecoming a Federal Employee” in his correspondence to OSC, but concluded that she would not consider the appellant’s suspension as an alleged personnel action in this appeal because the appellant did not raise this alleged personnel action in his jurisdictional response and stated in his rebuttal to the agency’s jurisdictional response that it is not an action before the Board. IAF, Tab 20 at 10 n.3. 5 After the appellant withdrew his request for a hearing, the administrative judge issued an initial decision based on the written record denying the appellant’s request for corrective action. IAF, Tab 42, Initial Decision (ID) at 1. The administrative judge first discussed and reanalyzed her prior findings as to jurisdiction. ID at 6-11, 15-19. She then found that the appellant failed to prove that he had a reasonable belief that he was making a protected disclosure under 5 U.S.C. § 2302(b)(8) when he alleged that the QMHS Principal was engaging in discriminatory hiring by only hiring Black women. ID at 11-15. However, the administrative judge found that the appellant proved by preponderant evidence that his protected activity—his OSC complaint—was a contributing factor in the issuance of the February 2019 LOR because the QMHS Principal appeared to have had some awareness of the appellant’s OSC complaint and issued the LOR only months after the appellant filed his complaint with OSC. ID at 15, 19-20. Nevertheless, the administrative judge concluded that the agency established by clear and convincing evidence that it would have issued the LOR in the absence of the appellant’s protected activity. ID at 21-29. The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 2. On review, he argues that the administrative judge erred in finding that he failed to exhaust before OSC his allegation of retaliation for filing an OIG complaint, that the agency’s OIG investigation into his alleged misconduct is a covered personnel action and the administrative judge erred in finding that he failed to exhaust this personnel action with OSC, that the administrative judge erred in her legal analysis and conclusion that he did not have a reasonable belief that he made a protected disclosure to the Mid-Atlantic District Superintendent, and that the administrative judge erred in her Carr factors analysis. Id. at 4, 16-25. The agency has filed a response. PFR File, Tab 4. The appellant has filed a reply. PFR File, Tab 6. 6 DISCUSSION OF ARGUMENTS ON REVIEW The Board has jurisdiction over an IRA appeal based on whistleblower reprisal under the Whistleblower Protection Enhancement Act of 2012 (WPEA) if the appellant has exhausted his administrative remedies before OSC and makes nonfrivolous allegations of the following: (1) he engaged in whistleblowing activity by making a protected disclosure 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);5 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). Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1371 (Fed. Cir. 2001); Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016). Once an appellant establishes jurisdiction over his IRA appeal, he then must establish a prima facie case of whistleblower retaliation by proving by preponderant evidence6 that he made a protected disclosure or engaged in 5 On review, the appellant does not challenge the administrative judge’s analysis or conclusion that the Board does not have jurisdiction over his claim of reprisal for filing an EEO complaint because filing an EEO complaint does not constitute whistleblowing under 5 U.S.C. § 2302(b)(8). ID at 7; IAF, Tab 20 at 8. However, we modify the initial decision to add that the WPEA extended the Board’s jurisdiction over IRA appeals to claims of reprisal for filing complaints seeking to remedy whistleblower reprisal under 5 U.S.C. § 2302(b)(8). See 5 U.S.C. §§ 1221(a), 2302(b)(9)(A); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013). Here, based on our review of the record, it seems that the appellant’s EEO complaint alleges discrimination and reprisal for filing his August 2018 OSC complaint. IAF, Tab 14 at 347, Tab 15 at 149. However, the appellant did not allege that the substance of his EEO complaint concerned remedying a violation of 5 U.S.C. § 2302(b)(8), IAF, Tabs 9, 17, and it does not appear that the agency investigated that claim as part of the appellant’s EEO complaint, IAF, Tab 14 at 347-65, or that OSC construed the appellant’s EEO complaint as one seeking to remedy whistleblower reprisal, IAF, Tab 1 at 6. As such, we agree with the administrative judge’s conclusion that the Board lacks jurisdiction over the appellant’s allegations of reprisal for his EEO complaint in the context of this IRA appeal. See Young v. Merit Systems Protection Board , 961 F.3d 1323, 1329 (Fed. Cir. 2020) (explaining that the Board lacks jurisdiction in an IRA appeal over claims of reprisal for EEO activity protected under section 2302(b)(9)(A)(ii)). 6 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).7 protected activity that was a contributing factor in a personnel action taken against him. Lu v. Department of Homeland Security , 122 M.S.P.R. 335, ¶ 7 (2015). If the appellant makes out a prima facie case, 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. Id. (citing 5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the Interior , 116 M.S.P.R. 17, ¶ 12 (2011)). The administrative judge incorrectly found that the appellant failed to exhaust his claim of retaliation for protected OIG activity. Under 5 U.S.C. § 1214(a)(3), an employee is required to exhaust his administrative remedies with OSC before seeking corrective action from the Board in an IRA appeal. Mason v. Department of Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). The Board, in Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The requirements are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. The Board’s jurisdiction is limited to those issues that were previously raised with OSC. However, appellants may give a more detailed account of their whistleblowing activities before the Board than they did to OSC. Id. Appellants may demonstrate exhaustion through their initial OSC complaint; evidence that they amended the original complaint, including but not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations; and their written responses to OSC referencing the amended allegations. Id. Appellants also may establish exhaustion through other sufficiently reliable evidence, such as an affidavit or a declaration attesting that they raised with OSC the substance of the facts in the Board appeal. Id. An appellant must prove exhaustion with OSC by preponderant evidence. Id., ¶ 11. 8 In this case, the appellant submitted a copy of both of his OSC complaints, copies of his correspondence to OSC, and OSC’s closeout letter. IAF, Tab 1 at 6-7, 12-30, 63-67. With regard to his OIG activity, the appellant asserted in his second OSC complaint that he had made a disclosure to the agency’s OIG regarding “[u]nfair advantage to people of the administrator’s own race through the fabrication of documents to try to justify a selection,” and he further claimed that “[a]ll of these retaliatory unfounded accusations started after I filed a complaint with [O]IG.” Id. at 23. The administrative judge concluded that, because the appellant failed to provide any other information to OSC supporting this allegation, and because this “bare and conclusory allegation” would not be sufficient for OSC to pursue an investigation, the appellant failed to establish that he exhausted his claim of retaliation for filing an OIG complaint before OSC. ID at 7-9. The appellant disputes this finding and we agree with the appellant. PFR File, Tab 2 at 16-17. We find these assertions sufficient for exhaustion purposes and note that the appellant also referenced his “IG” complaint numerous other times throughout his second OSC complaint. IAF, Tab 1 at 23. Furthermore, OSC specifically acknowledged the appellant’s claim that he had filed an OIG complaint in its communications to the appellant and in its closeout letter. IAF, Tab 1 at 6, 27; see Sutton v. Department of Justice , 94 M.S.P.R. 4, ¶ 9 (2003) (considering OSC’s termination letters in determining whether the appellant satisfied the exhaustion requirement), aff’d, 97 F. App’x 322 (Fed. Cir. 2004). Given all of the above, we modify the initial decision to find that the appellant proved by preponderant evidence that he provided OSC with a sufficient basis to pursue an investigation as to this claim. See Chambers, 2022 MSPB 8, ¶¶ 10-11. Nonetheless, we find that the appellant did not prove by preponderant evidence that he engaged in protected activity described under 5 U.S.C. § 2302(b) (9)(A)(i), (B), (C) or (D) with respect to his alleged OIG complaint. Under 5 U.S.C. § 2302(b)(9)(C), any disclosure of information to OIG or OSC is protected regardless of its content as long as such disclosure is made in9 accordance with applicable provisions of law. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. However, here, apart from the appellant’s assertions to OSC, there is no preponderant evidence that he actually filed a complaint with the agency’s OIG. The appellant did not submit a copy of this alleged OIG complaint, did not state when he supposedly filed this complaint, and did not otherwise explain the nature of this complaint. IAF, Tabs 9, 17; ID at 8 n.4. Under these circumstances, we find that the appellant did not prove by preponderant evidence that he engaged in protected activity with respect to his alleged OIG complaint.7 The administrative judge incorrectly found that the appellant did not exhaust his claim that he was subjected to an agency investigation in retaliation for his protected activity. On review, the appellant also argues that the administrative judge incorrectly concluded that he failed to exhaust before OSC his claim that the agency’s October 2018 OIG investigation was in retaliation for his protected activity, and he further asserts that the agency’s investigation is a covered personnel action. PFR File, Tab 2 at 19-20. We agree with him that the administrative judge erred in her exhaustion analysis. In the initial decision, the 7 Even if we were to find that the appellant proved by preponderant evidence that he engaged in protected activity by filing a complaint with the agency’s OIG, the appellant failed to prove that such protected activity was a contributing factor in the LOR, which, as discussed further below, is the only personnel action at issue in this appeal. See 5 U.S.C. § 1221(e)(1). Not only has the appellant failed to provide any evidence as to when he allegedly filed this OIG complaint, but it appears that the appellant’s OIG complaint was directed at Math Teacher C.S. and the Assistant Principal, and there is no evidence that either individual knew of the appellant’s alleged complaint, were involved in the decision to issue the LOR, or disclosed information about the appellant’s complaint to the QMHS Principal or otherwise influenced his decision in issuing the LOR. ID at 7 & n.3; IAF, Tab 1 at 23; see Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶¶ 14-15 (2012) (summarizing the various methods by which an appellant can satisfy the contributing factor criterion). Based on this and the strength of the agency’s reasons for reprimanding the appellant, which is also discussed further below, we find that the appellant would not have established a prima facie case of whistleblower retaliation based on alleged protected OIG activity. See Dorney, 117 M.S.P.R. 480, ¶ 15. 10 administrative judge found that the appellant alleged in his first OSC complaint that the QMHS Principal asked agency officials to “conduct an investigation” about him and that the investigation was in “reprisal” for his whistleblowing activities. ID at 18; IAF, Tab 1 at 22. She concluded, however, that the appellant failed to exhaust this claim of a retaliatory investigation because he “provided no details to OSC about the alleged investigation and provided no basis for his conclusion that it was in retaliation for protected activity.” ID at 18. The administrative judge’s conclusion was an overly restrictive reading of the exhaustion standard and ignores other evidence of exhaustion on this issue. See Chambers, 2022 MSPB 8, ¶¶ 10-11 (stating that the requirements of exhaustion are met when an appellant has provided OSC with a sufficient basis to pursue an investigation ). In addition to the above, the appellant claimed in one of his written responses to OSC that the QMHS Principal proposed his suspension “based on the investigation performed by HQ” that began after he raised his concern about hiring practices, IAF, Tab 1 at 30, which OSC acknowledged in its closeout letter, id. at 6. Further, the appellant’s written response also indicates that OSC acknowledged his claim that he was “subjected to a retaliatory investigation” in a December 6, 2019 letter to him. Id. at 27. Consequently, we modify the initial decision to find that the appellant proved by preponderant evidence that he provided OSC with information sufficient to pursue an investigation into his allegation of an alleged retaliatory personnel action. However, we disagree with the appellant that the OIG investigation is a covered personnel action. PFR File, Tab 2 at 19. The Board has held that an investigation into an allegation of misconduct is not a personnel action per se. Spivey v. Department of Justice , 2022 MSPB 24, ¶ 10 (citing Sistek v. Department of Veterans Affairs , 955 F.3d 948, 955 (Fed. Cir. 2020) (concluding that “retaliatory investigations, in and of themselves, do not qualify as personnel actions” under the whistleblower protection statutory scheme)). Instead, such investigations come within the statutory definition of a “personnel action” only if11 they result in a significant change in job duties, responsibilities, or working conditions or have effects that otherwise fit within one of the items listed under 5 U.S.C. § 2302(a)(2)(A). Id. However, even if the investigation does not constitute a significant change in working conditions or other personnel action enumerated in section 2302(a)(2)(A), 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. Id. Absent any proposed disciplinary action, the mere threat of disciplinary action can also amount to a personnel action. Id., ¶ 7. Here, the agency’s OIG investigation resulted in the appellant’s suspension, which fits within the definition of a “personnel action” under 5 U.S.C. § 2302(a) (2)(A). IAF, Tab 14 at 182-83, 196-200. In her order finding jurisdiction, however, the administrative judge concluded that the appellant’s suspension would not be considered as an alleged personnel action in this appeal because the appellant did not raise this alleged personnel action in his jurisdictional response, and because he stated in his rebuttal to the agency’s jurisdictional response that it is not an action before the Board. IAF, Tab 17 at 11, Tab 20 at 10 n.3. In her initial decision, the administrative judge noted that the appellant did not file any objection to her order or provide evidence and argument regarding his suspension in his closing evidence or argument. ID at 3 n. 2. On review, the appellant’s new counsel notes that the appellant “elected not to pursue this personnel action before the Board” and that the suspension is “not the subject of the current appeal.” PFR File, Tab 2 at 14 n.1, 20 n.2. Consequently, because the appellant did not object to the administrative judge’s order and his new counsel on review does not appear to dispute or otherwise challenge this finding, we do not consider the suspension as a personnel action in this case. See 5 C.F.R. § 1201.115 (stating that “[t]he Board normally will consider only issues raised in a timely filed petition or cross petition for review”). In addition, the appellant did not12 provide any evidence or argument establishing that the agency’s investigation had any practical or significant effects on the overall nature and quality of his working conditions, duties, or responsibilities. See Spivey, 2022 MSPB 24, ¶ 13. Further, there is no evidence that the agency’s OIG investigation was so closely related to the LOR that it could have been pretext for gathering evidence to use to retaliate against the appellant for whistleblowing. To this end, we agree with the administrative judge that the only personnel action at issue in this case is the LOR.8 ID at 19. However, as the administrative judge discussed during the appeal, the agency’s OIG investigator provided a sworn statement maintaining that she only investigated allegations that the appellant had created a racially motivated hostile work environment for multiple teachers and staff members during the 2017-2018 school year and the first two months of the 2018-2019 school year. IAF, Tab 31 at 12-15; see Russell v. Department of Justice , 76 M.S.P.R. 317, 324 (1997) (stating that, in considering evidence of pretext, the Board looks at where the investigation had its beginnings). The investigator specifically averred that she did not conduct any interviews or engage in fact- finding regarding the allegations that formed the basis of the LOR, and that she advised the agency that those allegations would need to be investigated and resolved separately. IAF, Tab 31 at 14, Tab 32 at 2. As a result, we find that the appellant did not establish that the agency’s OIG investigation is a covered personnel action or that the investigation was pretext for retaliation and should be considered in conjunction with the LOR. 8 With regard to the last alleged personnel action, as discussed above, the administrative judge found that the appellant failed to exhaust with OSC any claim that he was reassigned in retaliation for protected activity . ID at 16-17. We agree with her conclusion. 13 We modify the initial decision to clarify that, even if the appellant reasonably believed that he had disclosed discriminatory hiring practices, such a disclosure would not fall under the purview of 5 U.S.C. § 2302(b)(8). On review, the appellant challenges the administrative judge’s conclusion that he failed to show that he made a protected disclosure regarding his allegation that the QMHS Principal was engaging in “reverse discrimination” by only hiring Black women. PFR File, Tab 2 at 17-19; IAF, Tab 9 at 13-14. In the initial decision, the administrative judge concluded that the appellant failed to show that he reasonably believed that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) regarding discriminatory hiring practices because the agency submitted evidence showing that there were nine employees appointed to QMHS positions during the timeframe stated by the appellant, including five Black females, three White females, and one White male, and it seemed “unlikely that a disinterested observer, assessing color and gender based on simple observation, could reasonably conclude that, in making hiring decisions, the QMHS Principal violated the law or engaged in abuse of authority by hiring only females of his same race and color.” ID at 14-15. We find that the administrative judge erred in her analysis here. Even if the appellant had a reasonable belief such a violation occurred, the Board recently reaffirmed that disclosures about discrimination based on Title VII-protected grounds, such as race, color, and sex, are excluded from coverage under 5 U.S.C. § 2302(b)(8) because they are covered by 5 U.S.C. § 2302(b)(1)(A), and therefore not within the purview of the Board’s IRA jurisdiction. Edwards v. Department of Labor , 2022 MSPB 9, ¶¶ 10-17, 22-23 aff’d, No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023); see Von Kelsch v. Department of Labor , 59 M.S.P.R. 503, 509 (1993) (reasoning that Congress did not intend to extend protection to appellants who allege that their agencies retaliated against them after they challenged practices made unlawful by Title VII), overruled on other grounds by Thomas v. Department of the Treasury , 77 M.S.P.R. 224, 236 n.9 (1998), overruled by Ganski v. Department of the14 Interior, 86 M.S.P.R. 32 (2000). Therefore, although we agree with the administrative judge’s conclusion that the appellant’s disclosure did not constitute a protected disclosure under 5 U.S.C. § 2302(b)(8),9 we modify the basis for her finding. We agree with the administrative judge that the agency established by clear and convincing evidence that it would have issued the LOR absent the appellant’s protected activity, but we modify and clarify her analysis. Because the appellant made a prima facie case of whistleblower reprisal, the burden shifts to the agency to show by clear and convincing evidence that it would have issued the LOR absent the protected OSC activity. 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). In determining whether an agency has shown by clear and convincing evidence that it would have taken the personnel action in the absence of the whistleblowing, the Board generally will consider the following factors (“Carr 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. See 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. A proper analysis of the clear and convincing evidence issue requires that all of the evidence be weighed together—both the evidence that supports the agency’s case and the evidence that detracts from it. Shibuya v. Department of Agriculture , 9 Further, because this disclosure concerned a violation of Title VII, it does not fall under the purview of 5 U.S.C. § 2302(b)(9)(A)(i). See Edwards, 2022 MSPB 9, ¶¶ 24-25.15 119 M.S.P.R. 537, ¶ 37 (2013) (citing Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012)). Regarding Carr factor one, we find that the agency had strong evidence in support of its personnel action. As noted above, the LOR charged the appellant with (1) making false, malicious, or unfounded statements against other employees, supervisors, other officials or subordinates with the intent to destroy or damage the reputation, authority, or official standing of those concerned; and (2) lack of candor, following an investigation of an interaction that the appellant had with the math teachers during a department meeting on January 31, 2019. IAF, Tab 14 at 258-61. In considering the first Carr factor, the administrative judge incorrectly discussed whether the appellant engaged in the charged conduct instead of analyzing the strength of the agency’s evidence in support of the LOR. ID at 23-28; see Yunus v. Department of Veterans Affairs , 84 M.S.P.R. 78, ¶ 12 (1999) (holding that, in an IRA appeal, the relevant inquiry is not whether the appellant committed any actual misconduct, but whether the agency had strong evidence to support its personnel action). However, her analysis still appropriately found that the math teachers’ statements established that the appellant made several inappropriate comments that were offensive, demeaning, and unprofessional. ID at 23-27. On review, the appellant argues that the administrative judge erroneously disregarded his rebuttal of the statements made against him, including that he provided evidence of several disparities between the statements. PFR File, Tab 2 at 21-22. We disagree. Below, the appellant argued that S.S.’s statement was not credible because the QMHS Principal stated in the LOR that he asked S.S. to write a statement after he received C.S.’s complaint, yet S.S. stated in an April 2022 sworn statement submitted on appeal that she “was not prompted by anyone to write a statement” and did so on her “own initiative.” IAF, Tab 39 at 19, Tab 40 at 7-8; ID at 23 n.18. However, the administrative judge addressed this in the initial decision and reasonably found that, because the incident at issue16 occurred many years ago, there may be little recollection about a minor detail like how the statements were initiated. ID at 23 n.18. We note that the administrative judge found “limited evidence” regarding the lack of candor charge. ID at 27. We agree with the administrative judge that there is not strong evidence in support of this specific charge. However, on the whole, we find that C.S. and S.S.’s statements constitute strong evidence in support of the agency’s issuance of a LOR. C.S. and S.S.’s statements reflect that the appellant made malicious or unfounded statements against them and the QMHS Principal. The agency’s decision to issue a reprimand in response to these types of inappropriate comments was a reasonable response, especially given that a letter of reprimand appears to be the minimum disciplinary action for such an offense and only remained in the appellant’s official personnel folder for 2 years. Id. at 260. We thus find that Carr factor one weighs in the agency’s favor. Regarding Carr factor two, the administrative judge found that the QMHS Principal had “no demonstrated motive” to retaliate against the appellant. ID at 28. She reasoned that the agency investigated the allegations that the QMHS Principal had engaged in discriminatory hiring practices and found them “unwarranted,” and found that the QMHS Principal was not subjected to any personnel action or other consequence as a result of the appellant’s allegations. Id. The appellant disputes this finding on review, and we agree with him that the administrative judge erred in her conclusion here. PFR File, Tab 2 at 22-23. The appellant’s OSC complaint directly implicated the QMHS Principal and contained serious derogatory and potentially damaging allegations against him in his capacity as a manager. IAF, Tab 1 at 15-16; see Chavez v. Department of Veterans Affairs , 120 M.S.P.R. 285, ¶ 33 (2013) (finding that criticisms that reflect on individuals in their capacities as managers and employees are sufficient to establish substantial retaliatory motive); see also Russell , 76 M.S.P.R. at 326 (considering the fact that the agency officials were the subjects of the appellant’s protected disclosures in determining that they had a retaliatory motive). In17 addition, as the administrative judge found, the QMHS Principal appeared to have had some awareness of the appellant’s OSC complaint as of August 2018, months before he issued the appellant the LOR. ID at 20; IAF, Tab 15 at 65. Furthermore, the QMHS Principal was the subject of several of the appellant’s disparaging remarks during the January 2019 meeting that were made in front of staff, and which echoed the allegations that the appellant made in his complaint to OSC. The record reflects that the QMHS Principal had at least some professional motive to retaliate against the appellant. We therefore modify the administrative judge’s finding regarding Carr factor two to find the existence of a modest retaliatory motive. Finally, the appellant argues that the administrative judge erred in her analysis of the third Carr factor. PFR File, Tab 2 at 24-25. In the initial decision, the administrative judge concluded that “there is undisputed evidence that the agency takes similar actions against other employees regardless of their whistleblower status.” ID at 28. The administrative judge based this finding on an agency administrator’s sworn statement that she has only experienced one other DoDEA employee “who made offensive and/or derogatory comments to and about other employees and staff members that was similar” to the appellant’s misconduct and that she issued that employee an LOR. Id.; IAF, Tab 39 at 29. We agree with the appellant that the administrative judge erred in her analysis here. As noted above, the third Carr factor looks at whether the agency presented any evidence as to whether the agency has taken similar actions against similarly situated employees who were not whistleblowers . See Carr, 185 F.3d at 1323. Thus, the administrative judge erred in disregarding whether this other employee was a whistleblower. Furthermore, the administrative judge erred in finding that this factor weighed in favor of the agency when the agency did not provide any specific information regarding this other employee, including whether the employee had engaged in protected whistleblowing activity or was otherwise similarly situated to the appellant. The U.S. Court of Appeals for the Federal18 Circuit has found that the third Carr factor cannot favor the Government when the Board finds an absence of relevant comparator evidence. Siler v. Environmental Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018). Because we find that the agency administrator’s sworn statement alone is insufficient to show that this other employee is in fact an appropriate comparator, we modify the initial decision to find that Carr factor 3 does not weigh in the agency’s favor. See id.; see also Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 18. Nevertheless, despite the administrative judge’s inaccurate analysis of the Carr factors, we agree with her ultimate conclusion and conclude that the QMHS Principal would have issued a reprimand absent the appellant’s protected activity and regardless of any motive to retaliate. Accordingly, we deny the appellant’s petition for review. The initial decision is affirmed as modified herein. 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 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.19 within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If 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. 20 (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that 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: 21 Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.11 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). 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. 22 If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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.23	Rios_Luis_M_DC-1221-22-0033-W-1_Final_Order.pdf	2024-08-19	LUIS MANUEL RIOS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-22-0033-W-1, August 19, 2024	DC-1221-22-0033-W-1	NP
680	https://www.mspb.gov/decisions/nonprecedential/Gallegos_Lupita_DE-1221-22-0304-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD LUPITA GALLEGOS, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DE-1221-22-0304-W-1 DATE: August 19, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Steven R. Simon , Esquire, Glendale, Arizona, for the appellant. Naseam Jabberi , Esquire, and David M. Brown , 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 a petition for review of the initial decision, which denied corrective action in her individual right of action appeal. On petition for review, the appellant, among other things, challenges 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). credibility determinations and argues that the administrative judge gave inappropriate weight to hearsay evidence without assessing its probative value . 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). ¶2The 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). Because the appellant has not offered such sufficiently sound reasons here, we decline to 2 Though the appellant claims that her disclosure of an official’s recording of appointment dates the agency allegedly could not honor evidenced falsification, she conceded the possibility that the agency honored those appointment dates during the hearing. Initial Appeal File, Hearing Transcript at 78-79 (testimony of the appellant). We find that the appellant’s purported belief that the official falsified the dates was thus not reasonable, and that her disclosure was not protected under 5 U.S.C. § 2302(b)(8). See Turner v. Department of Agriculture , 2023 MSPB 25, ¶ 14 (stating that a protected disclosure is one an appellant reasonably believes evidences a category of wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A)).2 disturb the administrative judge’s credibility findings. Petition for Review (PFR) File, Tab 1 at 11-12. ¶3The appellant argues that the administrative judge erroneously credited certain hearsay evidence over her hearing testimony without assessing the hearsay’s probative value, as required in Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 87 (1981). PFR File, Tab 1 at 11. We disagree. Though she did not cite Borninkhof, the administrative judge discussed evidence corroborating the appellant’s coworker’s account of their February 2020 altercation before crediting that account over the appellant’s testimony. Initial Appeal File, Tab 30, Initial Decision (ID) at 9, 24-25, 33-34. We thus find that the administrative judge appropriately assessed the probative value of the coworker’s hearsay statement. See Borninkhof, 5 M.S.P.R. at 87 (stating that factors to consider in assessing the probative value of hearsay evidence include whether corroboration for statements can be found in the record). In the remainder of the instances the appellant raises in her petition for review, her own live testimony corroborated the hearsay evidence; the hearsay’s probative value was thus not at issue.3 See id. at 89-90 (finding that the probative value of hearsay evidence was not at issue when it was not materially disputed). 3 In her reply to the agency’s response to her petition for review, the appellant discusses two additional examples of hearsay evidence, which she argues were rebutted by her testimony. PFR File, Tab 1 at 11, Tab 4 at 5-6. Even if the agency did rely on the hearsay evidence the appellant discusses to prove the underlying events, we agree with the administrative judge’s determinations that the appellant’s testimony regarding those events, considering the surrounding evidence, was not credible. ID at 36-37. To the extent the appellant requests that we reverse the administrative judge’s credibility determinations through this claim, we find that she has not provided sufficiently sound reasons for doing so. See Haebe, 288 F.3d at 1301.3 NOTICE OF APPEAL RIGHTS4 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). 4 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.4 If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on5 race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or6 other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.5 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The 5 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 7 Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.8	Gallegos_Lupita_DE-1221-22-0304-W-1_Final_Order.pdf	2024-08-19	LUPITA GALLEGOS v. DEPARTMENT OF COMMERCE, MSPB Docket No. DE-1221-22-0304-W-1, August 19, 2024	DE-1221-22-0304-W-1	NP
681	https://www.mspb.gov/decisions/nonprecedential/Stokes_Tushombe_A_DC-1221-20-0588-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TUSHOMBE A. STOKES, Appellant, v. DEPARTMENT OF COMMERCE, Agency.DOCKET NUMBER DC-1221-20-0588-W-1 DATE: August 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Andrew J. Perlmutter , Esquire, Silver Spring, Maryland, for the appellant. Taron Murakami , Alexandria, Virginia, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. FINAL ORDER ¶1The appellant has petitioned for review of the initial decision in this appeal. For the reasons set forth below, we DISMISS the petition for review as settled. ¶2After filing her petition for review, the appellant submitted a document entitled “SETTLEMENT AGREEMENT,” signed by the parties on 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). December 22, 2021. Petition for Review (PFR) File, Tab 7. The document provides, among other things, that the appellant agreed to withdraw the petition for review in exchange for promises by the agency. ¶3Before dismissing a matter as settled, the Board must decide whether the parties have entered into a settlement agreement, whether they understand its terms, and whether they intend to have the agreement entered into the record for enforcement by the Board. See Mahoney v. U.S. Postal Service , 37 M.S.P.R. 146, 149 (1988). In addition, before accepting a settlement agreement into the record for enforcement purposes, the Board must determine whether the agreement is lawful on its face and whether the parties freely entered into it. See Delorme v. Department of the Interior , 124 M.S.P.R. 123, ¶¶ 10-11 (2017 ). ¶4Here, we find that the parties have entered into a settlement agreement, and they understand its terms. We further find that the parties do not intend to enter the settlement agreement into the record for enforcement by the Board, as the agreement instead provides for enforcement through the Equal Employment Opportunity Commission (EEOC). PFR File, Tab 7 at 9; see Grubb v. Department of the Interior , 76 M.S.P.R. 639, 642-43 (1997) (finding that the parties intended the EEOC, not the Board, to enforce a settlement agreement). As the parties do not intend for the Board to enforce the settlement agreement, we need not address the additional considerations regarding enforcement and do not enter the settlement agreement into the record for enforcement by the Board. ¶5Accordingly, we find that dismissing the petition for review with prejudice to refiling (i.e., the parties normally may not refile this appeal) is appropriate under these circumstances. This is the final decision of the Merit Systems Protection Board in this appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R. § 1201.113).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	Stokes_Tushombe_A_DC-1221-20-0588-W-1_Final_Order.pdf	2024-08-16	TUSHOMBE A. STOKES v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-1221-20-0588-W-1, August 16, 2024	DC-1221-20-0588-W-1	NP
682	https://www.mspb.gov/decisions/nonprecedential/Guttenberg_Mark_W_DE-0752-23-0042-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD MARK W. GUTTENBERG, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DE-0752-23-0042-I-1 DATE: August 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Jeffrey H. Jacobson , Esquire, Tucson, Arizona, for the appellant. Cary Elizabeth Zuk , San Francisco, California, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member FINAL ORDER ¶1The appellant has filed a petition for review of the initial decision, which sustained the appellant’s removal. On petition for review, the appellant argues, among other things, that the agency committed due process violations or harmful procedural errors, and asserts that the administrative judge erred in her credibility 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). determinations and in sustaining the agency’s charges and specifications.2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.3 5 C.F.R. § 1201.113(b). 2 The appellant makes numerous arguments related to the merits of the agency’s specifications, including arguments regarding whether the appellant violated city code, as alleged by the first specification of the agency’s first charge, conduct unbecoming a deportation officer. Petition for Review (PFR) File, Tab 9 at 15-17. We need not interpret the city code because an agency only has to prove one specification under a charge to have its charge sustained. Miller v. U.S. Postal Service , 117 M.S.P.R. 557, ¶ 17 (2012); see Burroughs v. Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990). Because the agency proved the two remaining specifications under the charge, it has proven the charge. 3 On review, the appellant also argues that the administrative judge abused her discretion both by excluding certain evidence and allowing other evidence into the record. PFR File, Tab 9 at 22, 25. Administrative judges have broad discretion to control the proceedings before them and, absent a showing of abuse of discretion, the Board will not find reversible error. 5 C.F.R. § 1201.41(b); see Lee v. Department of Veterans Affairs, 2022 MSPB 11 , ¶ 9. The appellant has not established that the administrative judge erred in her evidentiary rulings or that these rulings had any impact on the outcome of this matter. Therefore, there is no basis to reverse the initial decision. 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 within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for 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.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.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. 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	Guttenberg_Mark_W_DE-0752-23-0042-I-1_Final_Order.pdf	2024-08-16	MARK W. GUTTENBERG v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DE-0752-23-0042-I-1, August 16, 2024	DE-0752-23-0042-I-1	NP
683	https://www.mspb.gov/decisions/nonprecedential/Reed_DeannaDC-1221-21-0085-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEANNA REED, Appellant, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Agency.DOCKET NUMBER DC-1221-21-0085-W-1 DATE: August 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Deanna Reed , Washington, D.C., pro se. Brooke DuBois , Esquire, Matthew Watson , Esquire, Kimberly Stratton , Esquire, and William Barteau , 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. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). FINAL ORDER The appellant has filed a petition for review of the initial decision, which applied the doctrine of collateral estoppel to dismiss 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; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to VACATE the administrative judge’s finding that the appellant’s claims regarding one of her alleged disclosures are barred by collateral estoppel, and to FIND instead that the appellant failed to nonfrivolously allege that this disclosure was protected whistleblowing, we AFFIRM the initial decision. BACKGROUND The appellant was a Special Needs Assistance Specialist with the Department of Housing and Urban Development (HUD) serving under a term appointment. Reed v. Department of Housing & Urban Development , MSPB Docket No. DC-1221-21-0085-W-1, Initial Appeal File (0085 IAF), Tab 1, Tab 6 at 41. On July 6, 2018, the appellant filed a complaint with the Office of Special Counsel (OSC) alleging whistleblower retaliation for making protected disclosures in a May 2018 meeting with her supervisor and other agency2 personnel. Reed v. Department of Housing & Urban Development , MSPB Docket No. DC-1221-19-0258-W-1, Initial Appeal File (0258 IAF), Tab 6 at 10-23. After 120 days passed without receiving a close-out notice from OSC, the appellant filed an IRA appeal on February 1, 2019. 0258 IAF, Tab 1, Tab 11, Initial Decision (0258 ID) at 3. After briefing by the parties, the administrative judge dismissed that appeal for lack of jurisdiction, finding that the appellant failed to nonfrivolously allege that any of her alleged disclosures were protected whistleblowing. 0258 ID at 5-8. The administrative judge found that the appellant, whose position was funded through an interagency agreement between the agency and the Department of Justice (DOJ), made only vague and conclusory assertions that she disclosed that funds designated under the interagency agreement were being used for other purposes, her workload violated the interagency agreement, and funds between HUD and DOJ were improperly commingled. 0258 ID at 3, 5-8. The administrative judge additionally found that the appellant failed to exhaust with OSC her disclosures that the performance standards in her annual review did not match her position description and that a white colleague was receiving credit for her work; thus, the administrative judge did not further consider these disclosures in the appeal. 0258 ID at 3 n.3. The administrative judge further found that, although the appellant appeared to have filed a complaint with the agency’s Inspector General (IG) office, she did not allege that any of the personnel actions at issue were based on reprisal for filing such a complaint. 0258 ID at 7 n.6. As such, the administrative judge similarly did not consider the appellant as alleging retaliation for protected activity under 5 U.S.C. § 2302(b)(9). Id. The appellant did not file an appeal of this decision, and it became final on April 23, 2019. 0258 ID at 8. On September 17, 2020, OSC provided the appellant with a close-out letter from her original 2018 complaint and informed her that she may file an IRA appeal with the Board. 0085 IAF, Tab 5 at 10-11. The appellant subsequently3 filed an IRA appeal challenging the same personnel actions at issue in her 2018 Board appeal. Compare 0085 IAF, Tab 1 at 5, Tab 5 at 4-7, with 0258 IAF, Tab 1 at 6, Tab 8 at 4-8. The administrative judge informed the appellant of her burden of establishing jurisdiction over her IRA appeal. 0085 IAF, Tab 3 at 2-8. The appellant again alleged that the agency took personnel actions due to her protected disclosures made during the May 2018 meeting between herself, her supervisor, and other agency personnel. 0085 IAF, Tab 5 at 7-8. She additionally reraised her argument that she disclosed that her performance standards in her annual review did not match her position description. Id. at 7. The agency subsequently filed a motion to dismiss for lack of jurisdiction, in part because the doctrine of collateral estoppel should bar relitigation of issues that were decided in the 2019 appeal. 0085 IAF, Tab 6 at 4-10. The appellant did not respond to this submission. Without holding the appellant’s requested hearing, the administrative judge issued an initial decision applying collateral estoppel to dismiss the appeal for lack of jurisdiction. 0085 IAF, Tab 8, Initial Decision (0085 ID) at 1, 10. She found, in part, that the 2019 IRA appeal and the instant appeal both were based on the same 2018 OSC complaint. 0085 ID at 7-10. The administrative judge found that OSC’s issuance of a subsequent close-out letter on the same matter did not provide a basis for relitigating issues that had been actually litigated by the parties and were necessary to the administrative judge’s decision in the prior appeal. Id. The appellant has filed a petition for review, and the agency has responded. Petition for Review (PFR) File, Tabs 1, 3. The appellant subsequently filed a reply, which was both untimely and partially illegible. PFR File, Tab 4. As instructed by the Office of the Clerk of the Board, the appellant resubmitted the portion of her reply that was illegible. PFR File, Tab 5, Tab 9 at 2-9.2 2 The agency has moved to strike the appellant’s reply as untimely. PFR File, Tab 6. The appellant has submitted a motion to waive the time limit for her reply. PFR File, Tab 7. We do not reach the issue of the timeliness of the appellant’s reply because we4 DISCUSSION OF ARGUMENTS ON REVIEW The doctrine of collateral estoppel bars relitigation of most, but not all, of the appellant’s allegations. Collateral estoppel, or issue preclusion, is appropriate when the following elements are met: (1) the issue is identical to that involved in the prior action; (2) the issue was actually litigated in the prior action; (3) the determination of the issue in the prior action was necessary to the resulting judgment; and (4) the party against whom issue preclusion is sought had a full and fair opportunity to litigate the issue in the prior action. Hau v. Department of Homeland Security , 123 M.S.P.R. 620, ¶ 13 (2016), aff’d sub nom. Bryant v. Merit Systems Protection Board, 878 F.3d 1320 (Fed. Cir. 2017). Collateral estoppel may be grounds for dismissing an appeal for lack of jurisdiction if a jurisdictional determination in a prior decision is afforded collateral estoppel effect and the appellant provides no other valid basis of Board jurisdiction. Id. In the instant appeal, the appellant alleged retaliation for making the following three disclosures: (1) her workload violated the interagency agreement between HUD and the DOJ; (2) the funds designated in the interagency agreement were inappropriately used and erroneously commingled; and (3) her performance standards did not match her position description. 0085 IAF, Tab 5 at 7-8, 10. As pertains to the first two disclosures, we agree with the administrative judge that relitigation of these issues is barred by collateral estoppel. In the former IRA appeal, the administrative judge considered and found that the appellant failed to nonfrivolously allege that either of the first two disclosures was protected. 0258 ID at 3, 6-7. The appellant in the instant appeal raises the same disclosures. Because the jurisdictional issues in this appeal were involved and actually litigated in the 2019 appeal, the first two criteria for find that the evidence and argument contained therein is immaterial to the dispositive issues of collateral estoppel and the Board’s jurisdiction. We deny the appellant’s motion for leave to submit additional evidence because she has not shown that the records she wishes to submit were not readily available before the record closed or would bear on the dispositive issues. PFR File, Tab 10; see 5 C.F.R. § 1201.114(k). 5 collateral estoppel are satisfied. See McNeil v. Department of Defense , 100 M.S.P.R. 146, ¶ 19 (2005). The third and fourth criteria for collateral estoppel are also satisfied because the jurisdictional determinations made in the former appeal were necessary to the resulting judgment to dismiss the appeal for lack of jurisdiction and because the appellant, as a party to the former appeal, had a full and fair opportunity to litigate these jurisdictional issues. See id. On review, the appellant has challenged the application of collateral estoppel in general terms, but she has not identified how either of these disclosures is different from those litigated in the former appeal. PFR File, Tab 1 at 4-5. Accordingly, we agree with the administrative judge that the doctrine of collateral estoppel bars relitigation regarding these two disclosures. As pertains to the third disclosure, however, we vacate this aspect of the initial decision and decline to apply the doctrine of collateral estoppel. The administrative judge in the 2019 appeal found that the appellant had failed to prove that, at that time, she had exhausted her administrative remedies with OSC regarding her disclosure that her performance standards did not match her position description, and thus he did not further consider this disclosure.3 0258 ID at 3 n.3. OSC’s September 17, 2020 close-out letter, however, explicitly mentions this alleged disclosure, and thus it is clear that, at some point, she raised the issue with OSC. 0085 IAF, Tab 5 at 10. It is not clear from the record when the appellant “exhausted” this issue with OSC, and OSC’s close-out letter is dated about 19 months after the February 1, 2019 decision in the first IRA appeal. We find it is unnecessary to decide this aspect of the appellant’s claims on exhaustion grounds because, for the reasons set forth below, the Board lacks jurisdiction over it for other reasons. Under these circumstances, we decline to apply the doctrine of collateral estoppel to the appellant’s claims regarding her third alleged 3 The administrative judge also found that the appellant failed to exhaust her disclosure that a white colleague was receiving credit for her work. 0258 ID at 3 n.3. The appellant has not raised this disclosure in the instant appeal, and thus we need not consider it. 6 disclosure. Cf. Milligan v. U.S. Postal Service , 106 M.S.P.R. 414, ¶ 9 (2007) (explaining that, even when the criteria for collateral estoppel have been met, there are circumstances in which the Board may refrain from applying the doctrine). For the following reasons, however, we find that the appellant has still failed to establish the Board’s jurisdiction over such claims. The appellant has failed to nonfrivolously allege that her alleged disclosure regarding her performance standards is protected whistleblowing. To establish the Board’s jurisdiction in a typical IRA appeal, the appellant must show by preponderant evidence that she exhausted her administrative remedies before OSC and make nonfrivolous allegations of the following: (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. Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39 . In this context, a nonfrivolous allegation is an allegation of sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369 (Fed. Cir. 2020); 5 C.F.R. § 1201.4(s). A protected disclosure is a lawful disclosure of information that the appellant reasonably believes evidences at least one of the categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8), i.e., any violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. See 5 U.S.C. § 2302(b)(8); Hessami, 979 F.3d at 1367; Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 6 (2016). The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to and readily7 ascertainable by the employee could reasonably conclude that the actions of the agency evidenced one of the categories of wrongdoing described in 5 U.S.C. § 2302(b)(8). Salerno, 123 M.S.P.R. 230, ¶ 6. To be protected, a disclosure must be specific and detailed, not vague allegations of wrongdoing. Id. Here, the appellant seemingly alleged that, during a meeting with her supervisor, her union representative, and a human resources official, she disclosed that her performance standards did not match her position description and that she was not being rated on the “pay for success” duties included in her position description. 0085 IAF, Tab 5 at 7, 10.4 It appears that the appellant may be implicitly arguing that she reasonably believed she was disclosing that her performance standards were invalid. Under 5 U.S.C. § 4302(c)(1), agencies are required to implement performance standards that, to the maximum extent feasible, permit the accurate evaluation of job performance on the basis of objective criteria related to the job in question. Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 29 (2010). Standards must be reasonable, realistic, attainable, and clearly stated in writing. Id. Provided these requirements are met, however, the Board will defer to managerial discretion in determining what agency employees must do in order to perform acceptably in their positions. Id. The appellant has not alleged that she disclosed that her performance standards were not reasonable, realistic, attainable, or clearly stated in writing. Indeed, it does not appear she disclosed any challenge to the existing performance standards, but rather, she seemingly asserted that the agency was not rating her 4 OSC’s close-out letter similarly indicates that, in June 2018, the appellant filed a report with HUD’s IG raising the same disclosures. 0085 IAF, Tab 5 at 10. This IG complaint was addressed in the appellant’s former IRA appeal. 0258 ID at 7 n.6. Therein, the administrative judge found that the appellant advanced no argument that any of the personnel actions at issue were based on reprisal for filing this IG complaint, and thus, the administrative judge did not construe an allegation of whistleblower retaliation for protected activity under 5 U.S.C. § 2302(b)(9). Id. In the instant appeal, the appellant similarly does not advance an argument that any personnel actions were in retaliation for filing the IG complaint. Given that the appellant was on notice that she needed to explicitly raise such a claim, we similarly find that the appellant has not raised in these proceedings an allegation of retaliation for protected activity. 8 performance on other duties from her position description. We find that the appellant has not alleged facts that if proven could establish that she had a reasonable belief that she was disclosing wrongdoing of any type covered by 5 U.S.C. § 2302(b)(8). For instance, the appellant has not identified, and we are not aware of, any law, rule, or regulation that requires an agency to rate an employee on every duty listed in her position description. See Hessami, 979 F.3d at 1371 n.6 (finding that the appellant failed to raise any colorable argument for why she reasonably believed that her disclosures evidenced a violation of law, rule, or regulation). We further find that she failed to make a nonfrivolous allegation that the creation or application of her performance standards was an abuse of authority. An abuse of authority occurs when there is an arbitrary or 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 preferred other persons. Pasley v. Department of the Treasury , 109 M.S.P.R. 105, ¶ 18 (2008). The appellant has alleged no facts that could support a finding that she reasonably believed she was disclosing such arbitrary or capricious conduct in connection with her performance standards. See Salerno, 123 M.S.P.R. 230, ¶ 6 (finding that a disclosure must be specific and detailed, not vague allegations of wrongdoing).5 Accordingly, we find that she has failed to make a nonfrivolous allegation that she engaged in protected whistleblowing in connection with her alleged disclosure about her performance standards, and thus she has failed to establish IRA jurisdiction concerning her reprisal claims based on that alleged disclosure. 5 On review, the appellant alleges that, as a result of her 2018 complaint, HUD had a “mandatory whistleblowing discussion” with OSC regarding new Federal directives on whistleblowing. PFR File, Tab 1 at 5. She further asserts that her disclosures resulted in a change in accounting codes within the agency and that OSC obtained various corrective actions from the agency based on her complaint. Id. This evidence and argument does not alter our analysis as it does not explain why she reasonably believed her specific disclosure regarding performance standards evidenced one of the circumstances outlined in section 2302(b)(8).9 NOTICE OF APPEAL RIGHTS6 The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although 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.10 U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the 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 any11 requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative 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’s12 disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a 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. 13 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.14	Reed_DeannaDC-1221-21-0085-W-1_Final_Order.pdf	2024-08-16	DEANNA REED v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DC-1221-21-0085-W-1, August 16, 2024	DC-1221-21-0085-W-1	NP
684	https://www.mspb.gov/decisions/nonprecedential/Shepperd_Kirk_I_DC-0752-20-0366-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KIRK I. SHEPPERD, Appellant, v. DEPARTMENT OF THE ARMY, Agency.DOCKET NUMBER DC-0752-20-0366-I-1 DATE: August 16, 2024 THIS ORDER IS NONPRECEDENTIAL1 Neil C. Bonney , Esquire, Virginia Beach, Virginia, for the appellant. Blaine Markuson , Esquire, Fort McCoy, Wisconsin, for the agency. Timothy D. Johnson , Esquire, Fort Bragg, 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 The appellant has filed a petition for review of the initial decision, which dismissed his appeal of an alleged constructive suspension for lack of jurisdiction. 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, VACATE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND The appellant was an Inspector, WG-5803-10, stationed in Fort Eustis, Texas. Initial Appeal File (IAF), Tab 1 at 1. In August 2018, he suffered a knee injury (meniscus tear) while performing military reserve duty. IAF, Tab 4 at 7, Tab 9 at 128. He underwent surgery on October 31, 2018, and began rehabilitation. IAF, Tab 4 at 7. On February 10, 2020, the appellant filed a Board appeal, alleging that the agency had imposed a constructive suspension, effective December 1, 2018, by denying his request to return to work.2 IAF, Tab 1 at 4, 6. He further alleged that the agency denied him due process and discriminated against him by failing to accommodate his disability. Id. at 6. He requested a hearing. Id. at 2. The administrative judge advised the appellant of his burden of proof on jurisdiction,3 and ordered him to submit evidence and argument on the issue. IAF, Tab 3. In response, the appellant provided a declaration, sworn under penalty of perjury, in which he averred that he was able to return to work on December 1, 2018, with no more than minimal accommodations, and the agency advised him that he could not return to work. IAF, Tab 4 at 7. The agency disputed the appellant’s version of events, asserting that it had offered him the opportunity to return to work light duty if feasible, but that his 2 The appellant asserts, and the agency does not dispute, that he did not learn of his Board appeal rights until he spoke with his attorney on February 10, 2020. IAF, Tab 4 at 5, 7. 3 The jurisdictional notice was largely correct, but the administrative judge erred in stating that the question of who initiated the absence is an issue in “enforced leave type constructive suspensions.” IAF, Tab 3 at 2. As the Board clarified in Abbott v. U.S. Postal Service, 121 M.S.P.R. 294 (2014 ), the placement of an employee on enforced leave for more than 14 days is an ordinary suspension within the Board’s jurisdiction, and the case law concerning constructive suspensions is not applicable to such a case. Id., ¶ 10. 2 own medical documentation indicated that he was unable to do so. IAF, Tab 9 at 6-7. According to the agency, the appellant had last provided a November 26, 2019 doctor’s note, stating that he was still recovering from knee surgery and was expected to be rehabilitating until February 2020. Id. at 6, 7, 64. The agency asserted that it “continued to be ready to receive [the appellant] back to work whenever he decides to return.” Id. at 7, 36. In response to the agency’s filing, the appellant provided additional evidence, including a January 13, 2020 internal email from an agency human resources official, and a November 26, 2019 text message between the appellant and his supervisor. IAF, Tab 10 at 7-8. In the email, the human resources official indicated that he had contacted the appellant, and that the appellant indicated he was willing to discuss his options with the Civilian Personnel Advisory Center and local command, and was “also willing to come back to work on light duty until this gets resolved.” Id. at 7. In the text message, the appellant stated: “They [the agency] were the ones who told me I couldn’t come back until I was cleared by the doctor is there a problem now that I haven’t [sic] been cleared[.]” Id. at 8. The administrative judge dismissed the appeal without a hearing. IAF, Tab 11, Initial Decision (ID). He found that the appellant “failed to establish jurisdiction,” and that he provided “no evidence” that the agency took any wrongful actions that deprived him of the choice to return to work. ID at 4-5. In reaching that conclusion, the administrative judge found that the appellant’s own factual submissions, in particular the November 26, 2019 text message, demonstrated that he lacked the capacity to work. ID at 5. The administrative judge also found it significant that the appellant had “cut off communication” with the agency—which, according to the agency’s submissions, took place after the appeal was filed. ID at 3-4; IAF, Tab 9 at 36. On petition for review, the appellant argues that he made a nonfrivolous allegation of jurisdiction, and that the administrative judge improperly made3 credibility determinations without a hearing. Petition for Review (PFR) File, Tab 1 at 5-7. The agency has filed a response. PFR File, Tab 3. DISCUSSION OF ARGUMENTS ON REVIEW The Board has explained that, although various fact patterns may give rise to an appealable constructive suspension, all constructive suspension claims are premised on the proposition that an absence that appears to be voluntary actually is not. Thomas v. Department of the Navy , 123 M.S.P.R. 628, ¶ 9 (2016); Rosario- Fabregas v. Department of the Army , 122 M.S.P.R. 468, ¶ 8 (2015), aff’d, 833 F.3d 1342 (Fed. Cir. 2016). To demonstrate that an absence from work was not voluntary, and is an actionable constructive suspension, an appellant must show that (1) he lacked a meaningful choice in the matter; and (2) it was the agency’s wrongful actions that deprived him of that choice. Thomas, 123 M.S.P.R. 628, ¶ 9; Romero v. U.S. Postal Service , 121 M.S.P.R. 606, ¶ 8 (2014). Assuming that the jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise met, proof of these two things is sufficient to establish Board jurisdiction. Thomas, 123 M.S.P.R. 628, ¶ 9; Rosario-Fabregas , 122 M.S.P.R. 468, ¶ 8; Romero, 121 M.S.P.R. 606, ¶¶ 8-9; see Rosario-Fabregas , 833 F.3d at 1344-45 (approving the Board’s analysis). It is well settled that, in a constructive adverse action appeal, if an appellant makes a nonfrivolous allegation of fact establishing Board jurisdiction, he is entitled to a hearing at which he must prove jurisdiction by preponderant evidence. Garcia v. Department of Homeland Security , 437 F.3d 1322, 1344 (Fed. Cir. 2006). Whether allegations are nonfrivolous is determined based on the written record. See Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994). In determining whether the appellant has made a nonfrivolous allegation of jurisdiction entitling him to a hearing, the administrative judge may consider the agency’s documentary submissions. Id. To the extent that the agency’s evidence constitutes mere factual contradiction of the appellant’s otherwise4 adequate prima facie showing of jurisdiction, the administrative judge may not weigh evidence and resolve conflicting assertions of the parties and the agency’s evidence may not be dispositive . Id. We agree with the appellant that the administrative judge did not correctly apply this standard. First, the initial decision repeatedly implies that the appellant was required to prove jurisdiction in order to avoid dismissal without a hearing. ID at 4-5 (stating that the appellant “has not shown,” “failed to establish,” and “has not established” jurisdiction). Thus, the administrative judge appears to have held the appellant to a higher burden of proof than is required at this stage of the proceeding. See Thomas, 123 M.S.P.R. 628, ¶ 10. Furthermore, contrary to the initial decision, the appellant has provided at least some evidence to support his claim that the agency wrongfully deprived him of the choice to return to duty. First, he has provided a declaration, sworn under penalty of perjury, in which he states that he was able to return to work in some capacity on December 1, 2018, and that the agency advised him that he could not return to work. IAF, Tab 4 at 7. The Board’s regulations provide that an allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that (1) is more than conclusory; (2) is plausible on its face; and (3) is material to the legal issues in the appeal. 5 C.F.R. § 1201.4(s). While the appellant’s allegation is not particularly detailed, we find that it meets that standard. In addition, the January 13, 2020 email serves as evidence that the appellant had, by that time at least, informed the agency that he was willing to return to work on light duty. IAF, Tab 4 at 7. As to the November 26, 2019 text exchange between the appellant and his supervisor, the administrative judge focused on the final words of the appellant’s message (“now that I haven’t been cleared”) as an admission that the appellant’s doctor had not cleared him to return to work in any capacity. ID at 5; IAF, Tab 4 at 8. However, these words could also be read as indicating that the appellant’s doctor had not cleared him to return to full duty. This reading would be5 consistent with the appellant’s position that he was willing and able to return to work in some capacity, and the agency refused him permission to return unless he was able to work without accommodation. Moreover, even if it were appropriate to weigh the agency’s evidence at this stage of the proceedings, the agency has not provided evidence that it offered or attempted to offer the appellant light duty or another accommodation. The agency alleges that, during a January 15, 2020 phone conversation with the appellant, it offered him the opportunity to return to work on light duty. IAF, Tab 9 at 7. However, the statements of a party’s representative in a pleading do not constitute evidence . Hendricks v. Department of the Navy , 69 M.S.P.R. 163, 168 (1995). The email correspondence provided by the agency shows only that it considered requesting additional medical documentation. IAF, Tab 9 at 42. Finally, the administrative judge erred in relying on the agency’s allegation that the appellant “cut off communication” after filing his appeal. If the appellant did so, that has no bearing on his right to a hearing, as the Board’s jurisdiction over an appeal of an alleged constructive suspension is determined by the nature of the action at the time the appeal is filed. See Slocum v. U.S. Postal Service , 107 M.S.P.R. 129, ¶ 9 (2007). In sum, we find that the appellant has made a nonfrivolous allegation that he was constructively suspended. His allegations, if proven, could establish that he lacked a meaningful choice in the matter and that it was the agency’s wrongful actions that denied him that choice. See Thomas, 123 M.S.P.R. 628, ¶ 15. The jurisdictional prerequisites of 5 U.S.C. chapter 75 otherwise appear to be satisfied. See 5 U.S.C. § 7511(a)(1)(A); IAF, Tab 1 at 1, Tab 9 at 5. Accordingly, we find that the appellant has made a nonfrivolous allegation that he was subjected to an appealable constructive suspension, and that he is therefore entitled to a jurisdictional hearing.4 See Thomas, 123 M.S.P.R. 628, ¶ 15. 4 This case and Thomas are distinguishable from Rosario-Fabregas and Romero, in which the appellant’s entitlement to a hearing was not at issue. See Rosario-Fabregas , 122 M.S.P.R. 468, ¶ 6 (noting that the appellant did not request a hearing); see also6 On remand, the appellant must prove by preponderant evidence the matters that he has nonfrivolously alleged. If he does so, he will have established jurisdiction over his constructive suspension appeal, and the administrative judge must reverse the action on due process grounds—although he must still address the appellant’s claim of disability discrimination, if he still wishes to pursue those claims. If the appellant does not establish the Board’s jurisdiction, then the administrative judge must dismiss the appeal on that basis. Id., ¶ 16. ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. Romero, 121 M.S.P.R. 606, ¶ 2 (noting that a hearing had already been held). 7	Shepperd_Kirk_I_DC-0752-20-0366-I-1_Remand_Order.pdf	2024-08-16	KIRK I. SHEPPERD v. DEPARTMENT OF THE ARMY, MSPB Docket No. DC-0752-20-0366-I-1, August 16, 2024	DC-0752-20-0366-I-1	NP
685	https://www.mspb.gov/decisions/nonprecedential/Ziegler_Victor_R_DE-3443-06-0454-C-4_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD VICTOR ZIEGLER, Appellant, v. DEPARTMENT OF THE INTERIOR, Agency.DOCKET NUMBER DE-3443-06-0454-C-4 DATE: August 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Victor R. Ziegler , Sioux Falls, South Dakota, pro se. Okwede Okoh , 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 appellant has filed a petition for review of a compliance initial decision which dismissed his Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) appeal as settled. 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. We AFFIRM the compliance initial decision as MODIFIED, still dismissing the appeal for lack of jurisdiction, but doing so on the basis of collateral estoppel. BACKGROUND In August 2006, the appellant filed two Board appeals challenging, among other things, his non-selection for promotion to a police chief position under USERRA and the Veterans Employment Opportunities Act of 1998. Ziegler v. Department of the Interior , MSPB Docket No. DE-3443-06-0454-I-1, Initial Appeal File, Tab 1; Ziegler v. Department of the Interior , MSPB Docket No. DE-3443-06-0455-I-1, Initial Appeal File, Tab 1. In October 2008, the parties executed a settlement agreement providing that the appellant “waives, releases and forever discharges the [a]gency . . . from any and all appeals, complaints, claims, causes of action, or grievances, however designated, whether known or unknown, pending or not now pending . . . including, but not limited to those matters resolved specifically herein . . . up to and including the effective date of [the settlement agreement].” Ziegler v. Department of the Interior , MSPB Docket No. DE-3443-06-0454-M-2, Remand File, Tab 31 at 4-12, 15-16. As consideration, the appellant received, among other things, a 1-year reinstatement to the position from which he had been separated, extending his service past2 his minimum retirement age of 50. Id. at 4-5; Ziegler v. Department of the Interior, MSPB Docket No. DE -3443-06-0454-C-4, Compliance File (C-4 CF), Tab 6 at 47; see 5 U.S.C. § 8336(c)(1). The administrative judge dismissed the appeals as settled in an initial decision and entered the agreement into the record for enforcement purposes. Ziegler v. Department of the Interior , MSPB Docket No. DE-3443-06-0454-M-2, Remand Initial Decision (Nov. 7, 2008); Ziegler v. Department of the Interior , MSPB Docket No. DE-3443-06-0455-M-2, Remand Initial Decision (Nov. 7, 2008). The appellant filed petitions for review, which the Board dismissed as untimely filed without good cause shown. Ziegler v. Department of the Interior , MSPB Docket Nos. DE-3443-06-0454-M-2, DE -3443-06-0455-M-2, Final Order, ¶¶ 1, 6-9 (Dec. 27, 2016). In a subsequent decision regarding a separate appeal the appellant filed in 2002, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) observed that the appellant did not challenge the dismissal of his 2006 appeals as settled. Ziegler v. Merit Systems Protection Board , 705 F. App’x 997, 1000 (Fed. Cir. 2017). In June 2020, the appellant filed an appeal in which he reasserted his prior USERRA claims, arguing that the 2008 settlement agreement was invalid. Ziegler v. Department of the Interior , MSPB Docket No. DE -4324-21-0328-I-1, Initial Appeal File, Tab 1. The appellant requested reinstatement of the claims he raised in his 2006 USERRA appeal. Id. at 22-23. The administrative judge dismissed the appellant’s USERRA claims for lack of jurisdiction, finding that the claims, which were based on incidents preceding the 2008 settlement agreement, had been released in that agreement. Ziegler v. Department of the Interior , MSPB Docket Nos. DE-3443-06-0454-C-3, DE-4324-21-0328-I-1, Compliance Initial Decision at 9-11 (Sept. 29, 2021). To the extent the appellant was seeking to enforce the October 2008 settlement agreement, the administrative judge denied his request. Id. at 5-9. He also declined to void the agreement, noting that only the full Board could address that3 argument. Id. at 2 n.2. The appellant elected not to seek full Board review of the administrative judge’s decision, instead directly petitioning the Federal Circuit for review. The Federal Circuit affirmed the initial decision. Ziegler v. Department of the Interior , No. 2022-1182, 2022 WL 1435385 (Fed. Cir. May 6, 2022). In doing so, the Federal Circuit affirmed the administrative judge’s conclusion that the appellant released his independent USERRA claims, finding the settlement agreement “valid and enforceable.” Id. at 3-4. In November 2022, the appellant filed a pleading that he asserted was a new USERRA appeal. C-4 CF, Tab 1. In support, he repeated his argument from his 2020 appeal that his waiver of his USERRA rights in the 2008 settlement agreement was invalid, and thus he was not barred from pursuing his USERRA claims. Id. at 21-22. The regional office docketed the appellant’s pleading as a petition for enforcement. C-4 CF, Tab 2 at 1. The appellant disagreed with this designation, reasserting that he was filing a new USERRA appeal. C-4 CF, Tab 9 at 2. The administrative judge issued a compliance initial decision dismissing the case. C-4 CF, Tab 10, Compliance Initial Decision (C-4 CID) at 2, 8. Regarding the appellant’s concerns that the regional office improperly construed his November 2022 filing as a petition for enforcement, the administrative judge acknowledged that the appellant was seeking to file a USERRA appeal notwithstanding the October 2008 settlement agreement between himself and the agency. C-4 CID at 1-2 & n.1. To the extent that the appellant was seeking to pursue his USERRA claims, the administrative judge observed that the Federal Circuit had previously affirmed the validity and enforceability of the October 2008 settlement agreement. C-4 CID at 2 (citing 2022 WL 1435385, at 4). Further, he observed that an administrative judge cannot consider the validity of a settlement agreement unless the appellant first files a petition for review of the initial decision that dismissed the appeal as settled and the matter is remanded to the administrative judge by the full Board. Id. at 5-7. Thus, he concluded that he4 lacked jurisdiction over the appellant’s USERRA claims. Id. at 7-8. The appellant has filed a petition for review largely repeating his claims in his November 2022 pleading. Ziegler v. Department of the Interior , MSPB Docket No. DE-3443-06-0454-C-4, Compliance Petition for Review (C-4 PFR) File, Tab 1. The agency filed a response, to which the appellant replied.2 Id., Tabs 3-4. ANALYSIS We modify the compliance initial decision to find that the appellant’s argument that he did not release his USERRA claims is barred by collateral estoppel. The administrative judge dismissed the appeal below for lack of jurisdiction on the basis that only the full Board could review in the first instance the validity of the October 2008 settlement agreement dismissing the appellant’s 2006 appeals as settled. C-4 CID at 5-8. On review, among other things, the appellant repeats his challenges to the validity of the settlement agreement, asserting that those challenges are now properly before the Board on petition for review. C-4 PFR File, Tab 1. Although the appellant is correct to assert that the central issue in this appeal—whether he released his USERRA claims in the October 2008 settlement agreement—is now properly before us, we find that we lack jurisdiction over his appeal because he is barred from relitigating that issue under the doctrine of collateral estoppel.3 The doctrine of collateral estoppel, or issue preclusion, bars re-litigation of an issue when: (1) the issue is identical to that involved in the prior action; 2 Although the appellant claims in his reply that he was unable to read the agency’s response to his petition for review in its entirety because it was served to the wrong address and he was ultimately only able to view photographs of it, C-4 PFR File, Tab 4 at 1, the appellant’s reply substantively addresses the response and we discern no prejudice stemming from the agency’s misdirected service. 3 It is proper to consider a complaint which unmistakably challenges the validity of a settlement as a petition for review of the initial decision dismissing the appeal as settled. Hazelton v. Department of Veterans Affairs , 112 M.S.P.R. 357, ¶ 9 (2009). Because the doctrine of collateral estoppel bars the appellant’s claims at issue, his petition for review is denied. 5 (2) the issue was actually litigated in the prior action; (3) the determination on the issue in the prior action was necessary to the resulting judgment; and (4) the party against whom issue preclusion is sought had a full and fair opportunity to litigate the issue in the prior action, either as a party or as one whose interests were otherwise represented in that action. Simmons v. Small Business Administration , 115 M.S.P.R. 647, ¶ 12 (2011). Although the appellant argued below that collateral estoppel is not applicable, C-4 CF, Tab 1 at 5, we find that all four elements are present here. The appellant asserted below that his waiver of his USERRA claims in the settlement agreement was invalid because the agreement did not provide him with consideration exceeding what he was entitled to under USERRA, as required by 38 U.S.C. § 4302(b). C-4 CF, Tab 1 at 3. In relevant part, 38 U.S.C. § 4302(b) provides that USERRA “supersedes any . . . contract, agreement . . . or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by” USERRA. The appellant also argued that, because the release in the 2008 settlement agreement did not clearly and unambiguously cover USERRA claims, he did not waive them. C-4 CF, Tab 1 at 3-4 (citing Wysocki v. International Business Machine Corporation , 607 F.3d 1102, 1106-08 (6th Cir. 2010)). He further argued, among other things, that he signed the settlement agreement under duress caused by various agency actions, and that he did not understand or, due to his medical conditions, physically see or properly consider the agreement before signing it. Id. at 4-5, 11-17. But the appellant has litigated these claims before. On review in the appellant’s 2020 appeal, the Federal Circuit decided these issues. Ziegler, 2022 WL 1435385, at 3-4. The Federal Circuit concluded that the appellant received sufficient consideration for his USERRA waiver and that his waiver was not the result of coercion or duress. Id.; C-4 CF, Tab 1 at 3-5, 11-17; C-4 PFR File, Tab 1 at 1, 3-5, 18. Thus, the issue presented here, with the same supporting arguments no less, was actually litigated in the appellant’s 2020 appeal. See6 Banner v. United States , 238 F.3d 1348, 1354 (Fed. Cir. 2001) (stating that the “actually litigated” element is satisfied when the issue was properly raised by the pleadings, submitted for determination, and decided). Further, the Federal Circuit’s determinations regarding the appellant’s release of his USERRA claims were necessary to its affirmance of the Board’s dismissal of those claims for lack of jurisdiction. Finally, the appellant had a full and fair chance to litigate his 2020 appeal through the Federal Circuit. See McNeil v. Department of Defense , 100 M.S.P.R. 146, ¶ 19 (2005) (finding that an appellant, as a party to a former appeal, had a full and fair opportunity to litigate the now-precluded issues). To any extent the appellant submitted new arguments or evidence in the present appeal that he did not raise in his 2020 appeal, collateral estoppel still applies because the appellant has not shown that such arguments or evidence were unavailable when he litigated that appeal.4 Simmons, 115 M.S.P.R. 647, ¶ 12 (stating that collateral estoppel barred an appellant’s claim of a settlement agreement’s invalidity before the Board despite her having raised different arguments to support the invalidity claim in district court because she did not show or allege the evidence she cited in support of her claim before the Board was unavailable during her district court action). Because the appellant’s challenge to his release of his USERRA claims is barred by collateral estoppel, we deny the petition for review.5 4 Although the appellant relies on review, as he did below, on a 2021 Federal district court case, Ward v. Shelby County , No. 2:20-CV-02407, 2021 WL 2638035 (W.D. Tenn. June 25, 2021), vacated and remanded , 98 F.4th 688 (6th Cir. 2024); C-4 PFR File, Tab 1 at 10-12, 16-17; C-4 CF, Tab 1 at 3-4, the decision in the case was issued during the pendency of the 2020 appeal and was thus available during that appeal and the appellant’s petition for review to the Federal Circuit. 5 Because we deny the petition for review on collateral estoppel grounds, we do not address the appellant’s nearly 14-year filing delay. 7 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.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.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. 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	Ziegler_Victor_R_DE-3443-06-0454-C-4_Final_Order.pdf	3443-06-04	VICTOR ZIEGLER v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-3443-06-0454-C-4, August 16, 2024	DE-3443-06-0454-C-4	NP
686	https://www.mspb.gov/decisions/nonprecedential/Strand_Deborah_G_AT-1221-20-0626-W-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEBORAH GUERINGER STRAND, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-20-0626-W-1 DATE: August 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tricia Myers , Portland, Oregon, for the appellant. Patrick J. Neil , Esquire, Tampa, 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 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).2 By letter dated July 9, 2019, 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 28 at 52; 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 25, 2020, 353 days after the date of the close-out letter. IAF, Tab 1. On review, the appellant does not challenge the administrative judge’s finding that her IRA appeal was untimely filed by 287 days. Petition for Review (PFR) File, Tab 1 at 4, Tab 5 at 4-11; IAF, Tab 32, Initial Decision (ID) at 3. Rather, in her reply to the agency’s response, the appellant alleges for the first time that equitable tolling should apply to her case. PFR File, Tab 5 at 4-11. 2 Because the appeal was dismissed on timeliness grounds, the administrative judge properly did not reach the issue of jurisdiction. See Heimberger v. Department of Commerce, 121 M.S.P.R. 10, ¶ 13 (2014). 2 Although the appellant’s arguments are difficult to discern, she primarily seems to allege that the OSC attorney assigned to her whistleblower complaint and a prior complaint mishandled her case by giving her conflicting information, not allowing her sufficient time to respond to OSC’s requests to provide additional information and evidence, and telling her in April 2019 that OSC could not help her regarding her termination and hostile work environment claims. Id. at 4-8. She argues that OSC’s close-out letters were “very vague and misleading” and asserts that she was not aware that she had to file two separate appeals concerning her whistleblower complaint and termination and discrimination claims. Id. at 9. The appellant states that the OSC attorney sent the July 9, 2019 close-out letter months after telling the her that OSC could not help her, and asserts, “I did not initially notice, I am sure, because I was in shock and could not get [past the attorney] telling me that my termination was justified.” Id. at 10. She argues that she had been “derailed” and “misinformed” by the OSC attorney, who sent the close-out letter “to cover herself, after already telling” the appellant that OSC could not help her. Id. at 11. Finally, she asserts that she “did not know that [she] was out of the timeframe when [she] submitted” her IRA appeal. Id. at 12. 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 an new argument raised for the first time on review absent a showing that it is based on new and material evidence). The appellant provides no explanation why she did not submit her arguments and evidence in support of equitable tolling in response to the timeliness order. PFR File, Tab 1 at 4, Tab 5 at 4-11. The administrative judge afforded the appellant numerous opportunities to gather relevant evidence and respond to the timeliness issue, including two 30-day suspensions of case processing and granting the appellant’s3 request for an additional 30 days to provide evidence and argument in a final written submission. IAF, Tabs 22, 25, 26. Moreover, the administrative judge clearly informed the appellant that he would make a determination on timeliness based on the written record. IAF, Tab 26 at 1. Although the appellant argues on review that she “did not receive the last order until 2.8.2021,” PFR File, Tab 1 at 4, it is unclear if she refers to the February 3, 2021 initial decision or a previous order issued by the administrative judge. We note that the appellant filed five pleadings in response to the order regarding final submissions, none of which addressed the issue of timeliness. Tabs 27-31. To the extent that any of the documents that the appellant submitted on review concerning her communications with OSC and underlying allegations against her employing agency were not already part of the record, she has provided no explanation why they were not available before the close of the record. PFR File, Tab 1 at 5-34, Tab 10 at 5-203, Tab 11 at 4-40. In any event, the appellant’s arguments and evidence on review provide no 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 3-4. The administrative judge correctly found that the appellant had not identified the date on which she received OSC’s July 9, 2019 letter or alleged that she received it more than 5 days after it was issued, and the appellant’s vague argument on review that she did “not initially notice” the letter fails to establish that the filing deadline should have been extended. PFR File, Tab 5 at 10; see 5 C.F.R. § 1209.5(a)(1). The appellant’s assertion that she did not receive OSC’s preliminary determination letter dated June 14, 2019 until July 1, 2019, and that she was “completed unaware and blindsided” when the OSC attorney sent her another email and attached letter on July 9, 2019 after telling her that OSC “could not help” her, in fact serves as an acknowledgment that she did receive OSC’s letters. PFR File, Tab 5 at 6.4 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 arguments on review, we agree with the administrative judge that she has not alleged any circumstances that would warrant the application of equitable tolling to excuse her untimely filing. ID at 3-4; 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). Although the appellant argues on review that the OSC attorney gave her “conflicting messaging, making it impossible for [her] to respond in a timely manner,” the appellant’s extensive statements only concern her submission of additional information to OSC during the investigation of her complaint prior to the issuance of the July 9, 2019 close-out letter. PFR File, Tab 5 at 4-7. 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’s claim that she remained confused that she had to file an IRA appeal before the Board within a certain time frame does not demonstrate that she had been pursuing her rights diligently and that some extraordinary circumstances prevented her from filing an initial appeal until almost 1 year after OSC issued the letter. PFF File, Tab 5 at 9, 12; see Heimberger, 121 M.S.P.R. 10, ¶ 10. Accordingly, we deny the petition for review and affirm the initial decision.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	Strand_Deborah_G_AT-1221-20-0626-W-1_Final_Order.pdf	2024-08-16	DEBORAH GUERINGER STRAND v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-20-0626-W-1, August 16, 2024	AT-1221-20-0626-W-1	NP
687	https://www.mspb.gov/decisions/nonprecedential/Martin_Tracey_A_DC-0845-20-0640-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TRACEY A. MARTIN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-0845-20-0640-I-1 DATE: August 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Tracey A. Martin , Potomac, Maryland, pro se. Alison Pastor , 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 as untimely filed her appeal from a final decision issued by the Office of Personnel Management (OPM). For the reasons set forth below, the 1A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). appellant’s petition for review is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). BACKGROUND On May 28, 2020, the appellant electronically filed an appeal from a February 6, 2020 final decision issued by OPM that concluded she was overpaid civil service annuity benefits under the Federal Employees’ Retirement System. Initial Appeal File (IAF), Tab 1. The administrative judge issued the initial decision on June 11, 2020, dismissing the appeal as untimely filed. IAF Tab 4, Initial Decision (ID). The decision included instructions indicating that it would become final on July 16, 2020, unless a petition for review was filed by that date. ID at 4. Because the appellant was a registered e-filer during the adjudication of the initial appeal, the decision was served on her electronically. IAF, Tab 1 at 1-2, Tab 5. The appellant filed her petition for review on August 7, 2020, twenty-two days after the filing deadline. Petition for Review (PFR) File, Tab 1 at 86. The appellant stated that she did not receive the initial decision until July 29, 2020, when it was mailed to her home by her U.S. Senator’s office on July 22, 2020. Id. at 8-9. On August 26, 2020, the Acting Clerk of the Board issued an acknowledgment letter, advising the appellant that her petition for review was untimely filed and informing her that she must establish good cause for the untimely filing no later than September 10, 2020. PFR File, Tab 3 at 2. To assist the appellant, the Acting Clerk of the Board attached a “Motion to Accept Filing as Timely and/or to Ask the Board to Waive or Set Aside the Time Limit” form. Id. at 7-8. The appellant did not respond to the acknowledgment letter. The agency has filed a response to the appellant’s petition for review. PFR File, Tab 5.2 DISCUSSION OF ARGUMENTS ON REVIEW A petition for review generally must be filed within 35 days after the date the initial decision is issued or, if the party filing the petition shows that the initial decision was received more than 5 days after it was issued, within 30 days after the party received the initial decision. 5 C.F.R. § 1201.114(e). The 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). The party who submits an untimely filing has the burden of establishing good cause for the untimeliness by showing 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 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. 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). On review, the appellant claims that she did not become aware of the issuance of the initial decision until July 29, 2020, when it was mailed to her home by her U.S. Senator’s office. PFR File, Tab 1 at 8-9. As a registered e-filer, however, the appellant consented 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) (2020). When Board documents are issued, an email message is sent to e-filers that notifies them of the issuance and that contains a link to e-Appeal where the document can be viewed and downloaded; paper copies of these documents are not ordinarily served on e-filers. 5 C.F.R. § 1201.14(j)(1) (2020). E-filers are responsible for ensuring that email from @mspb.gov is not blocked by filters and for monitoring case activity at e-Appeal to ensure that they3 have received all case-related documents. 5 C.F.R. § 1201.14(j)(2)-(3) (2020). Further, 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) (2020). 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). The certificate of service reflects that the initial decision was electronically served on the appellant on June 11, 2020. IAF, Tab 5. Therefore, the appellant is considered to have received the initial decision on June 11, 2020. ID at 1; IAF, Tab 5. As noted above, 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. Via v. Office of Personnel Management , 114 M.S.P.R. 632, ¶ 5 (2010); 5 C.F.R. § 1201.114(g). Here, we find that the appellant has not shown good cause for the untimely filing of her petition for review. The appellant’s delay of 22 days, while not a vast amount of time, is not a de minimis period either. See Hodges v. Office of Personnel Management , 101 M.S.P.R. 212, ¶ 14 (2006) (holding that an appellant’s 23-day refiling delay was “not particularly de minimis . . . [and] not particularly lengthy”); Crozier v. Department of Transportation , 93 M.S.P.R. 438, 441 (2003) (finding a 13-day delay not minimal). Although the appellant’s pro se status is a factor weighing in her favor, it is insufficient to excuse her untimeliness. See Allen v. Office of Personnel Management , 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (declining to excuse a pro se appellant’s 14-day, unexplained delay in filing a petition for review). The appellant failed to allege any circumstances beyond her control that prevented her from filing on time. She did not provide any reasonable explanations for the delay. Further, she failed to respond to the Clerk’s notice requiring her to explain the delay in filing her petition for review. Although the appellant stated that she had trouble receiving mail to her home address, she provided evidence showing that she sent and received emails from OPM. PFR File, Tab 1 at 8, 12-17. Thus, she should have4 received the email message from the Board when the initial decision was issued. In addition, as an e-filer, it was her responsibility to routinely monitor e-Appeal for case activity. These combined factors make the delay inexcusable. For the above reasons, we conclude that the appellant did not establish that she exercised due diligence or ordinary prudence under the particular circumstances of her case, and therefore did not establish good cause for the untimely filing of her petition for review. 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, which dismissed her appeal of OPM’s final decision as untimely filed, remains the final decision of the Board.2 2 Since filing her petition for review, the appellant sought review of the Board’s initial decision with the U.S. Court of Appeals for the Federal Circuit. The court found that the initial decision was final and affirmed the administrative judge’s dismissal of the appeal as untimely filed without good cause shown. Martin v. Merit Systems Protection Board, No. 2020-2183, 2021 WL 4130640 (Fed. Cir. Sept. 10, 2021). As such, assuming that the petition for review had been timely filed or that good cause existed for the delay, the Board would dismiss the appeal as barred by collateral estoppel. The Board may find an appeal untimely filed based on collateral estoppel. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332, 340-41 (1995). Collateral estoppel, or issue preclusion, is appropriate when: (1) the issue is identical to the one involved in the prior action; (2) the issue was actually litigated in the prior action; (3) the determination on the issue in the prior action was necessary to the resulting judgment; and (4) the party against whom issue preclusion is sought had a full and fair opportunity to litigate the issue in the prior action, either as a party to the earlier action or as one whose interests were otherwise fully represented. McNeil v. Department of Defense , 100 M.S.P.R. 146, ¶ 15 (2005). Here, the timeliness issue is identical. Timeliness was litigated in the court case, and the determination of that issue was necessary to the decision. Moreover, as a party to that appeal, her interests were fully represented. Thus, we find the prerequisites for collateral estoppel have been satisfied. Although collateral estoppel had not been raised as a defense, the Board has held that it may raise the issue of collateral estoppel sua sponte if it is on notice that the issue was previously decided, and Board resources have been spent addressing the issue. See Killeen v. Office of Personnel Management , 106 M.S.P.R. 666, ¶¶ 9-11 (2007), vacated and remanded on other grounds , 558 F.3d 1318 (Fed. Cir. 2009); see also Stearn v. Department of the Navy , 280 F.3d 1376, 1380 -81 (Fed. Cir. 2002) (holding that raising a preclusion defense sua sponte might be appropriate in special circumstances, “[m]ost notably, ‘if a court is on notice that it has previously decided the issue presented, the court may dismiss the action sua sponte, even though the defense has not been5 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: raised.’”). 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	Martin_Tracey_A_DC-0845-20-0640-I-1_Final_Order.pdf	2024-08-16	TRACEY A. MARTIN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0845-20-0640-I-1, August 16, 2024	DC-0845-20-0640-I-1	NP
688	https://www.mspb.gov/decisions/nonprecedential/Blackmon_KellyDC-0752-20-0799-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KELLY BLACKMON, Appellant, v. PEACE CORPS, Agency.DOCKET NUMBER DC-0752-20-0799-I-1 DATE: August 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Ianna Richardson , Esquire, and Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant. Diane Bradley and Timothy F. Noelker , 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 for lack of jurisdiction. On petition for review, the appellant reargues the merits of her involuntary resignation claim, but does not address the administrative judge’s conclusion that, as a member of the Foreign 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). Service, she is excluded from the definition of an “employee” with Board appeal rights under 5 U.S.C. § 7511(b)(6) and 5 U.S.C. § 4301(2)(B). 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	Blackmon_KellyDC-0752-20-0799-I-1_Final_Order.pdf	2024-08-16	KELLY BLACKMON v. PEACE CORPS, MSPB Docket No. DC-0752-20-0799-I-1, August 16, 2024	DC-0752-20-0799-I-1	NP
689	https://www.mspb.gov/decisions/nonprecedential/Hammer_Daniel_K_CH-0752-19-0373-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DANIEL K. HAMMER, JR., Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER CH-0752-19-0373-I-1 DATE: August 16, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant. Hannah C. Brothers , Esquire, Chicago, Illinois, 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 agency action removing him from the Federal service. 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). 1A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). BACKGROUND The appellant was employed by the agency as a Supervisor, Distribution Operations, in Madison, Wisconsin. Initial Appeal File (IAF), Tab 4 at 209. On April 25, 2019, the agency removed the appellant based on the charge of absent without official leave/failure to follow proper leave requesting procedures. Id. at 46-52. The appellant timely filed an appeal with the Board, challenging the removal action and raising an affirmative defense of harmful procedural error. IAF, Tabs 1, 17, Tab 21 at 5. On March 10, 2020, after holding the requested hearing, IAF, Tab 1 at 2, Tab 27, the administrative judge issued an initial decision, finding that the agency proved its charge, that the penalty of removal promoted the efficiency of the service and was reasonable, and that the appellant failed to establish his affirmative defense, IAF, Tab 29, Initial Decision (ID) at 5-18. Accordingly, he affirmed the removal action. ID at 18. The administrative judge informed the appellant that the initial decision would become final on April 14, 2020, unless a petition for review was filed by that date. ID at 18. On June 5, 2020, the appellant filed a petition for review again challenging the penalty of removal, and the agency filed a response. Petition for Review (PFR) File, Tab 1 at 5, Tab 4.2 In an acknowledgment order, the Office of the Clerk of the Board informed the appellant that his petition for review was untimely filed because it was not postmarked or received by the Board on or before April 14, 2020. PFR File, Tab 2 at 1. It 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. Id. at 1-2. It further provided the appellant with information on how to file such a motion and provided a blank motion form for him to complete. 2 The Clerk of the Board recognized that, although the appellant actually filed an initial appeal form with the Board, he was challenging the March 10, 2020 initial decision. PFR File, Tab 2 at 1. Thus, the Board has considered the appellant’s pleading to be a petition for review. Id. 2 Id. at 2, 7-8. The appellant did not submit any such motion, nor did he respond to the Clerk of the Board’s statement of an untimely filing.3 DISCUSSION OF ARGUMENTS ON REVIEW The Board’s regulations provide that a petition for review must be filed within 35 days after the date of the issuance of the initial decision, or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the initial decision was issued on March 10, 2020. ID at 1. Thus, as the administrative judge correctly informed the appellant, he was required to file any petition for review no later than April 14, 2020. ID at 18. The appellant’s petition for review of the initial decision was filed on June 5, 2020. PFR File, Tab 1. As such, we find that the petition for review is untimely filed by 52 days. The Board may waive its timeliness regulations only upon a showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R. §§ 1201.12, 1201.114(g). The party who submits an untimely petition for review has the burden of establishing good cause 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; 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 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 3 After the issuance of the Board’s acknowledgment order, one of the appellant’s two representatives filed a motion to withdraw; this pleading did not address the timeliness of the appellant’s petition for review. PFR File, Tab 3. 3 to timely file his petition. Palermo, 120 M.S.P.R. 694, ¶ 4; Moorman v. Department of the Army , 68 M.S.P.R. 60, 62 -63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Here, the appellant appears to be represented by counsel,4 and the initial decision clearly informed him of the 35-day deadline of filing a petition for review. IAF, Tab 1 at 2, Tab 6; ID at 18. Moreover, the Board has considered a 1-month delay—a time period shorter than the 52 days at issue here—to be significant. See, e.g., Crook v. U.S. Postal Service , 108 M.S.P.R. 553, ¶ 6 (2008), aff’d, 301 F. App’x 982 (Fed. Cir. 2008). Finally, the appellant has not presented any 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. See Palermo, 120 M.S.P.R. 694, ¶ 4. On review, the appellant asserts that, throughout the appeal process, he has not been receiving emails or regular mail updating him of the status of his appeal in a timely manner. PFR File, Tab 1 at 5. However, at the time of the adjudication of the initial appeal, the appellant had elected to register as an e-filer, IAF, Tab 12 at 2, and the Board’s regulations provide that e-filers are responsible for monitoring case activity at e-Appeal to ensure that they have received all case-related documents, see 5 C.F.R. § 1201.14(j)(3) (2019); see also Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 5 (2009) (stating that the Board’s regulations require registered e-filers to monitor their case activity at e-Appeal). Although the appellant claims that he “twice missed meetings” with the administrative judge because he was “not informed in a timely 4 The appellant had two representatives below, and, as indicated above, one of the representatives withdrew on petition for review. PFR File, Tab 3. Although the appellant appears to have filed the petition for review on his own, there is nothing in the record showing that his second representative, an attorney, has withdrawn from the case. IAF, Tab 6. Even if the appellant were acting entirely pro se, the other factors, including the length of the delay and the lack of a showing of due diligence, would not support a finding of good cause. 4 manner via this portal,” the appellant does not indicate on review that he attempted to contact the Board for assistance with e-Appeal. PFR File, Tab 1 at 5. To the extent the appellant is arguing that his representatives failed to timely notify him of Board filings and the time limit for filing a petition for review, the Board has consistently held that, with limited exception not applicable here, an appellant is responsible for the action or inaction of his chosen representative. See Smith v. U.S. Postal Service , 111 M.S.P.R. 341, ¶ 9 (2009); Sofio v. Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981). As such, we find that the appellant has not established a reasonable excuse for his delay in filing, nor has he established that he acted with due diligence or ordinary prudence in filing his untimely petition for review under the circumstances of this case. See Palermo, 120 M.S.P.R. 694, ¶ 4. Accordingly, we find that the appellant has failed to establish good cause for his untimely filing, and we dismiss his petition for review as untimely filed without good cause shown. See, e.g., Via v. Office of Personnel Management , 114 M.S.P.R. 632, ¶ 7 (2010) (dismissing a petition for review as untimely filed without good cause shown for the delay in filing). This is the final decision of the Merit Systems Protection Board regarding the timeliness of the petition for review. The initial decision remains the final decision regarding the merits of this appeal. 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 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 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 representation6 for Merit Systems Protection Board appellants before the 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 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.6 The court of appeals must receive your petition for 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 8 review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. 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	Hammer_Daniel_K_CH-0752-19-0373-I-1_Final_Order.pdf	2024-08-16	null	CH-0752-19-0373-I-1	NP
690	https://www.mspb.gov/decisions/nonprecedential/Corcoran_Sara_J_DC-0843-22-0380-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SARA CORCORAN, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER DC-0843-22-0380-I-1 DATE: August 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Sara Corcoran , Washington, D.C., pro se. Jane Bancroft and Carla Robinson , 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 a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) denying her claim for survivor annuity benefits under the Federal Employees’ Retirement System (FERS) on the basis that she failed to establish 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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 she was married to the decedent at least 9 months prior to his death. 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). BACKGROUND ¶2The appellant and the decedent, a Federal employee, were married in a civil ceremony in Arlington, Virginia on May 29, 2020. Initial Appeal File (IAF), Tab 10 at 108. The decedent passed away on June 14, 2020. Id. at 109. On August 12, 2020, the appellant submitted an application for death benefits to OPM. Id. at 102-07, 113-18. On November 23, 2020, OPM issued an initial decision denying the appellant’s application, concluding that she was not entitled to survivor benefits because she and the decedent were not married for at least 9 months before the decedent’s death.2 Id. at 110; see 5 U.S.C. §§ 8441(1)(A), 2 As the appellant correctly notes in her petition for review, OPM’s initial decision incorrectly identifies that her application for a survivor annuity was under the Civil Service Retirement System (CSRS), instead of under FERS. Petition for Review (PFR) File, Tab 3 at 6 n.2, IAF, Tab 10 at 110; see IAF, Tab 10 at 113-18, 137-39. Although OPM’s reconsideration decision also incorrectly identifies the statutory provisions for CSRS, the administrative judge’s prehearing order and the initial decision correctly identify the statutory provisions for FERS survivor benefits as applicable in this case.2 8442(b), (e); 5 C.F.R. § 843.303(a)(1). The appellant requested reconsideration of OPM’s decision. On March 3, 2022, OPM requested additional information from the appellant in order to assess her application. IAF, Tab 9 at 7. After considering the appellant’s additional documentation, OPM issued a reconsideration decision dated April 7, 2022, denying the appellant’s request for a survivor benefit, determining that based on their May 29, 2020 civil marriage in Virginia, she and the decedent had not been married for at least 9 months prior to the decedent’s death, as required by Federal statute for entitlement to survivor benefits. IAF, Tab 9 at 5. OPM also considered, but rejected, the appellant’s argument that she and the decedent had established a common law marriage prior to the date of their civil marriage ceremony, determining that the Commonwealth of Virginia (the jurisdiction where the appellant identified that the decedent resided prior to his death) does not recognize common law marriages unless they were validly established in a state that recognizes common law marriages. Id. at 6. ¶3The appellant timely filed the instant appeal challenging OPM’s decision and requested a hearing on her appeal. IAF, Tab 1 at 2. In a prehearing order, the administrative judge defined the relevant issue in this appeal as concerning whether the appellant had established her entitlement to FERS survivor benefits and noted that the appellant intended to present evidence demonstrating that she and the decedent had entered into a valid common law marriage in the District of Columbia (D.C.) prior to their May 29, 2020 civil marriage. IAF, Tab 15 at 2-3. After holding the appellant’s requested hearing, IAF, Tab 16, Hearing Recording, the administrative judge issued an initial decision affirming OPM’s reconsideration decision denying the appellant’s application for survivor benefits, IAF, Tab 18, Initial Decision (ID) at 9. Specifically, the administrative judge determined that the appellant failed to establish that she and the decedent had created a valid common law marriage in D.C. prior to their May 2020 civil IAF, Tab 15 at 1, Tab 18, Initial Decision (ID) at 3-4.3 marriage in Virginia. ID at 4-9. Because she concluded that the appellant and the decedent had not been married for 9 months prior to the decedent’s death, the administrative judge determined that the appellant was not a “widow” for the purposes of entitlement to FERS survivor benefits under 5 U.S.C. §§ 8441(1)(A) and 8442(b) and affirmed OPM’s decision denying her application. ID at 3-4, 9. ¶4The appellant has filed a petition for review and has provided a copy of the hearing transcript with her petition for review. Petition for Review (PFR) File, Tab 3. The agency has filed a response in opposition to the petition for review. PFR File, Tab 6. DISCUSSION OF ARGUMENTS ON REVIEW ¶5On review, the appellant argues that the administrative judge erred by misapplying D.C. law and that she satisfied the requirements for establishing that she and the decedent created a valid common law marriage in D.C. more than 9 months prior to the decedent’s death. PFR File, Tab 3 at 5-20. To that end, the appellant argues that the administrative judge erred by concluding that there was insufficient evidence that she and the decedent formed an express mutual agreement to be married on a date prior to the date of their civil marriage, which is one of the elements required to form a common law marriage in D.C. Id. at 13-16. ¶6To support her argument, the appellant points to her unrebutted hearing testimony stating that she and the decedent had a conversation in December 2018 wherein they both agreed that they considered themselves to be husband and wife. Id. at 13-15. She also argues that the fact that she was unable to pinpoint an exact date on which she and the decedent agreed to be married was not dispositive in finding a lawful common law marriage under D.C. law, and that the administrative judge erred by indicating otherwise. Id. at 15-16. Finally, she argues that the administrative judge erred by discounting the testimony from other witnesses showing that she and the decedent regularly referred to each other as4 “husband,” “hubby,” “wife,” and “wifey,” as merely “terms of endearment” rather than as evidence that she and the decedent held themselves out as being married. Id. at 16-19. Applicable legal standard ¶7An individual seeking retirement benefits bears the burden of proving her entitlement to those benefits by preponderant evidence. Cheeseman v. Office of Personnel Management , 791 F.2d 138, 140-41 (Fed. Cir. 1986); 5 C.F.R. § 1201.56(b)(2)(ii). Pursuant to 5 U.S.C. § 8442(b)(1), a “widow or widower” of a Federal employee who dies while still in duty status after completing certain minimum lengths of service is entitled to a basic employee death benefit and a survivor annuity under FERS. Donati v. Office of Personnel Management , 106 M.S.P.R. 508, ¶ 10 (2007) (stating that, to be entitled to receive a FERS survivor annuity under 5 U.S.C. § 8442(b), the appellant must establish that she is the “widow” of the decedent), appeal dismissed , 329 F. App’x 265 (Fed. Cir. 2009); Charmack v. Office of Personnel Management , 93 M.S.P.R. 667, ¶ 10 (2003) (observing that, if an employee dies after completing at least 18 months of civilian service creditable under FERS and is survived by a widow or widower, the widow or widower is entitled to death benefits under 5 U.S.C. § 8442(b)(1)); see also 5 C.F.R. §§ 843.309-843.310 (implementing the death benefits set forth at 5 U.S.C. § 8442(b)(1)). ¶8The statutory definition of “widow” is “the surviving wife of an employee . . . who—(A) was married to him for at least 9 months immediately before his death; or (B) is the mother of issue by that marriage.”3 5 U.S.C. § 8441(1). The statute does not further define “marriage” or “wife.” 5 U.S.C. 3 Pursuant to 5 U.S.C. § 8442(e), a widow is not required to prove that they satisfied the 9-month marriage requirement if the decedent’s death was “accidental.” See 5 C.F.R. § 843.303(d)(1) (explaining the circumstances in which a death would be deemed accidental for the purpose of satisfaction of the 9-month marriage requirement). Although the administrative judge did not make any findings on this point, the appellant does not appear to assert that the decedent’s cause of death was accidental, as defined at 5 C.F.R. § 843.303(d)(1). IAF, Tab 10 at 109.5 § 8441. When the question of marriage is in doubt, OPM’s regulations refer to state law for resolution. See Donati, 106 M.S.P.R. 508, ¶ 6. To that end, OPM’s implementing regulations define “marriage” as “a marriage recognized in law or equity under the whole law of the jurisdiction with the most significant interest in the marital status of the employee[.]” 5 C.F.R. § 843.102; see Charmack, 93 M.S.P.R. 667, ¶ 11. Additionally, the Board has held that “[a] common-law marriage is given effect under [F]ederal law retirement statutes if it is recognized under the relevant state law and meets the 9-month duration requirement.” Moore-Meares v. Office of Personnel Management , 105 M.S.P.R. 613, ¶ 5 (2007). A party seeking to prove the elements of a common law marriage may do so through either direct or circumstantial evidence. Id., ¶ 6. ¶9Here, there appears to be some dispute concerning which jurisdiction has the most significant interest in the marital status of the decedent. OPM determined in its reconsideration decision that the appellant and the decedent had not created a valid common law marriage in the Commonwealth of Virginia. IAF, Tab 1 at 19. In her appeal to the Board, the appellant argued that she and the decedent cohabited in D.C. and had created a valid common law marriage in D.C. that Virginia would recognize, and that OPM improperly narrowed the scope of her claim by only considering whether she had created a common law marriage in Virginia. IAF, Tab 1 at 16 n.1, Tab 14 at 5. In the initial decision, the administrative judge determined that the decedent and the appellant cohabited in both Virginia and D.C. from approximately January 2019 until the decedent’s death, and analyzed the appellant’s claim that she and the decedent created a valid common law marriage in D.C. ID at 4-9. ¶10Because there is no dispute that the appellant and the decedent were not married for at least 9 months prior to the decedent’s death based on the date of their civil marriage, and because Virginia law does not allow for the creation of common law marriages within the Commonwealth and instead only recognizes common law marriages validly created in other states, the appellant’s potential6 entitlement to a survivor annuity benefit will ultimately turn on whether she can establish that she and the decedent created a common law marriage in D.C. See Farah v. Farah , 429 S.E.2d 626, 629 (Va. App. 1993); Offield v. Davis , 40 S.E. 910, 914 (Va. 1902). Accordingly, we will assume for the purposes of this appeal, as it appears the administrative judge did, that D.C. is the jurisdiction with the most significant interest in the marital status of the decedent and apply the laws of D.C. as the applicable state law for assessing the appellant’s claim. ¶11D.C. law has long recognized common law marriages created in the District. U.S. Fidelity & Guaranty Co. v. Britton , 269 F.2d 249, 251 (D.C. Cir. 1959) (citing Hoage v. Murch Bros. Const. Co. , 50 F.2d 983 (App. D.C. 1931)). To establish a common law marriage in D.C., the parties must establish cohabitation following an express mutual agreement, which must be in words of the present tense, to be permanent partners with the same degree of commitment as the spouses in a ceremonial marriage. Gill v. Nostrand , 206 A.3d 869, 875 (D.C. 2019). Proof of cohabitation alone will not suffice to prove the existence of a common law marriage. Bandsa v. Wheeler , 995 A.2d 189, 198 (D.C. 2010) (citing Coates v. Watts , 622 A.2d 25, 27 (D.C. 1993)) “Although there is no set formula required for the [express mutual] agreement, the exchange of words must inescapably and unambiguously imply that an agreement was being entered into to become [permanent partners with the same degree of commitment as the spouses in a ceremonial marriage] as of the time of the mutual consent.” Gil, 206 A.3d at 875 (quoting Coates, 622 A.2d at 27). An agreement “to be married at an unspecified future time . . . is insufficient to establish the existence of a common law marriage” under D.C. law. Coates, 622 A.2d at 27. Indeed, “[b]eing engaged by itself, does not constitute a common law marriage, but rather may signify an intention to marry,” and may, in fact, “tend[] to suggest the opposite by showing that the parties, for whatever reason, were not ready to be legally married” at that time. Cerovic v. Stojkov , 134 A.3d 766, 776 (D.C. 2016); Bansda, 995 A.2d at 199. 7 ¶12However, the fact that a couple decided to have a formal wedding ceremony is not conclusive evidence that they did not consider themselves to already be married. Cerovic, 134 A.3d at 776. What the proponent of a common law marriage that precedes a ceremonial marriage must ultimately show is that there has been “cohabitation, as husband and wife, following an express mutual agreement, which must be in words of the present tense.” Id. (quoting John Crane, Inc. v. Puller , 899 A.2d 879, 919 (Md. Ct. Spec. App. 2006)). Courts view with caution claims of common-law marriage. Dickey v. Office of Personnel Management, 419 F.3d 1336, 1340 (Fed. Cir. 2005). “Since ceremonial marriage is readily available and provides unequivocal proof that the parties are husband and wife, claims of common-law marriage should be closely scrutinized, especially where one of the purported spouses is deceased and the survivor is asserting such a claim to promote his financial interest.” Id. (quoting Coates, 622 A.2d at 27). “In order to constitute a common-law marriage, both spouses must intend and expressly covenant to enter into a permanent relationship of husband and wife.” Id. Finally, the proponent of a common law marriage that precedes a ceremonial marriage between the same two individuals is required to establish all of the essential elements of her claim by a preponderance of the evidence. Cerovic, 134 A.3d at 776. The administrative judge correctly concluded that the appellant failed to establish that she and the decedent created a common law marriage at least 9 months before the decedent’s death. ¶13In determining that the appellant failed to prove that she and the decedent formed a common law marriage in D.C. prior to the date of their civil marriage ceremony in Virginia, the administrative judge considered the documentary evidence and the unrebutted testimony from the appellant, her mother, a long -time friend, and the appellant and decedent’s mechanic regarding their perceptions of the nature of the relationship between the appellant and the decedent. ID at 5-9. After considering all of the provided evidence, the administrative judge found8 that the appellant established that she and the decedent cohabited in both Virginia and D.C. from approximately January 2019 until the decedent’s death on June 14, 2020, but failed to establish that she and the decedent had cohabitated in D.C. during that time as husband and wife, until they were ceremonially married on May 29, 2020. ID at 6. ¶14In making these findings, the administrative judge cited as persuasive the fact that the appellant was unable to identify a particular time or conversation in which she and the appellant expressly agreed that they were presently husband and wife. ID at 6. She credited the appellant’s testimony that she and the decedent at times referred to each other as “husband, “wife,” “hubby,” and “wifey,” but she nevertheless declined to credit her testimony that their use of these terms represented a mutual agreement to presently be married, as opposed to expressions of endearment. ID at 7. Instead, the administrative judge determined that the overwhelming evidence suggested that the appellant and the decedent became engaged and had a future intention to be married at some time prior to May 2020, which came to fruition with their civil marriage ceremony on that date. ID at 7-8. ¶15The administrative judge also credited testimony from the appellant’s witnesses concerning their perceptions of the nature of the relationship between the appellant and the decedent but determined that the testimony was consistent with her finding that, prior to their May 2020 civil marriage ceremony, the appellant and the decedent possessed only a future intention to be married at some later date. ID at 6-8. Specifically, the administrative judge credited testimony from the appellant’s long-time friend stating that she first learned of the appellant’s engagement to the decedent on March 17, 2019, but that she knew that the decedent was going to propose to the appellant and that he discussed how he wanted to marry her prior to the engagement. ID at 8; PFR File, Tab 3 at 106-08 (hearing testimony of appellant’s mother). The administrative judge also credited corroborating testimony from the appellant’s mother stating that the decedent had9 “asked for her [daughter’s] hand in marriage” in January 2019, as supporting her conclusion that the appellant and the decedent became engaged in January or February 2019 with the future intention to be married. PFR File, Tab 3 at 135-36 (testimony of appellant’s mother). In making these credibility findings, the administrative judge cited to the Board’s decision Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (setting forth the factors relevant to resolving credibility issues). ¶16The Board must defer to an administrative judge’s credibility determinations when she relies “expressly or by necessary implication” on a witness’s demeanor at the hearing. Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir. 2016). The Board “is not free to overturn an administrative judge’s demeanor-based credibility findings merely because it disagrees with those findings.” Haebe v. Department of Justice , 288 F.3d 1288, 1299 (Fed. Cir. 2002). Rather, the Board may overturn credibility-based determinations only when it has “sufficiently sound” reasons for doing so. Id. at 1301. As a result of the “sufficiently sound” requirement for overturning an administrative judge’s credibility determinations, the Board has established for administrative judges guidance relating to credibility determinations. See Hillen, 35 M.S.P.R. at 458; see also Haebe, 288 F.3d at 1301. Here, the administrative judge made specific and explained credibility findings, citing to Hillen repeatedly throughout the initial decision, and we see no reason to disturb those findings on review.4 ID at 6-9. 4 Additionally, although the appellant argued that the onset of the COVID-19 pandemic delayed her ability to obtain a ceremonial marriage, which the administrative judge credited, the marriage certificate included in the record issued by Fairfax County Circuit Court identifies that the certificate was issued on May 11, 2020, and the ceremony occurred on May 29, 2020. IAF, Tab 10 at 108. The appellant initially testified that she and the decedent intended to marry in late 2019 but that their plans were delayed by the onset of the COVID-19 pandemic, among other things. PFR File, Tab 3 at 38 (hearing testimony of the appellant). The appellant did not clarify in her testimony or on review how the COVID-19 pandemic, which did not begin to cause significant closures of state and local offices and business until March 2020, prevented her and the decedent from marrying in late 2019 or early 2020. Additionally, it appears10 ¶17Regarding the appellant’s specific argument that under D.C. law, the existence of the required mutual agreement may be inferred based on the “character and duration of” the cohabitation, and that the administrative judge erred by failing to adequately consider this fact, we find no error in the administrative judge’s findings. PFR File, Tab 3 at 15-17; see Jackson v. Bowen , 690 F. Supp. 58 (D.D.C 1998); Mesa v. U.S., 875 A.2d 79, 83 (D.C. 2005). To support her argument, the appellant cites the U.S. District Court for the District of Columbia’s decision in Jackson v. Bowen as instructive. However, the facts of Jackson are distinguishable from those in this case. ¶18As the appellant correctly notes, the court in Jackson cited to the fact that the appellant and the decedent in that case referred to each other as “husband and wife,” and that they were known as such by their friends, family members, and neighbors, and acknowledged that the “character and duration” of their cohabitation could be considered in inferring that a common law marriage existed. Jackson, 690 F. Supp. at 59-62. However, the court also considered other evidence as persuasive in reaching its decision, including the following: the extensive and lengthy nature of their period of cohabitation, observing that they cohabited continuously from August 1969, until the decedent’s placement in a VA hospital where he died on August 30, 1980, a period of 11 years; the fact that the decedent gave the appellant an engagement ring in August 1969, and a wedding that the Fairfax County Circuit Court responsible for issuing marriage certificates was only closed for a brief period between March 17, 2020, and April 14, 2020, at which time it began reissuing marriage certificates virtually. See Updated and Amended Memorandum COVID-19 Contingency/Action Plan Fairfax County Circuit Court Ordered Procedures , available at : http://www.courts.state.va.us/news/items/covid/2020_0318_fairfax_cc.pdf (last visited Aug. 15, 2024) (initiating the Fairfax County Circuit Court’s COVID-19 Contingency/Action Plan, effective March 17, 2020, which suspended most scheduled in-person hearings through May 26, 2020); “Marriage Licenses Go Virtual,” Fairfax County, Virginia Office of Public Affairs , available at: https://www.fairfaxcounty.gov/publicaffairs/marriage-licenses-go-virtual (last visited Aug. 15, 2024) (implementing a virtual marriage license system in the Fairfax County Circuit Court, effective April 14, 2020, which permitted applicants to apply for marriage licenses online and receive them by mail).11 ring in November 1969, and that although they originally intended to have a ceremonial marriage, they never ended up doing so prior to the decedent’s death; and the fact that the appellant and the decedent filed two joint tax returns under “married filing joint returns” status prior to the decedent’s death. Jackson, 690 F. Supp. at 60-64. ¶19In the instant case, by contrast, the evidence concerning the character and duration of the appellant’s and decedent’s cohabitation is less persuasive than that of Jackson because the decedent and the appellant here cohabited for approximately 18 months before the decedent’s death, they both maintained their existing residences from before they began cohabiting, and they split their cohabitation between D.C. and Virginia. PFR File, Tab 3 at 34-35, 61-63, 67-69 (hearing testimony of the appellant); see Jackson, 690 F. Supp. at 59. Additionally, unlike in Jackson, the appellant and the decedent in the instant case did ultimately complete a ceremonial marriage, they both filed separate tax returns in 2019, and the first joint tax return they filed was in 2020, after the date of their ceremonial marriage. PFR File, Tab 3 at 43-44; IAF, Tab 9 at 22-24, 38-50. ¶20Additionally, the court in Jackson was evaluating the common law marriage claim in the context of an application for widow’s insurance benefits from the Social Security Administration, pursuant to 42 U.S.C. § 402(e), which prioritizes certain types of evidence and appears to apply a different standard of review than that applicable to the civil service retirement statutes. Compare Jackson , 690 F. Supp. at 58, 62; 20 C.F.R. § 404.726(b)(2) (identifying types of “preferred” evidence for establishing a common-law marriage under Social Security Administration regulations, such as signed statements from blood relatives), with Allen v. Office of Personnel Management , 77 M.S.P.R. 212, 216 (1998) (determining that payments of money from the civil service retirement fund are limited to those authorized by statute and that the requirements of eligibility for a12 retirement benefit are substantive legal requirements that allow for no administrative discretion by OPM or the Board.) ¶21As the administrative judge observed, the record evidence clearly indicates that the appellant and the decedent expressed their mutual love and intention to marry prior to their May 19, 2020 civil marriage ceremony. ID at 7. Nevertheless, we agree with her finding that this evidence in insufficient to establish that the appellant and the decedent formed a common law marriage in D.C prior to the May 19, 2020 date of their civil marriage ceremony, and consequently, the appellant has failed to establish that she meets the 9-month marriage requirement set forth in 5 U.S.C. § 8441(1) for entitlement to a FERS survivor benefit. While we sympathize with the appellant’s circumstances, the Government cannot be estopped from denying benefits not otherwise permitted by law, and the Board lacks the authority to provide the appellant with an effective remedy under these circumstances. See Office of Personnel Management v. Richmond, 496 U.S. 414, 416, 423-24, 434 (1990); see also Pagum v. Office of Personnel Management , 66 M.S.P.R. 599, 601 (1995) (stating that when an applicant does not meet the requirements for an annuity, OPM cannot be required to pay the annuity). For the foregoing reasons, we deny the petition for review and affirm the initial decision denying the appellant’s application for FERS survivor benefits. 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 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.13 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 representation14 for Merit Systems Protection Board appellants before the 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 file15 with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.6 The court of appeals must receive your petition for 6 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court 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 review within 60 days of the date of issuance of this decision. 5 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. 17 Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.18	Corcoran_Sara_J_DC-0843-22-0380-I-1_Final_Order.pdf	2024-08-15	SARA CORCORAN v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0843-22-0380-I-1, August 15, 2024	DC-0843-22-0380-I-1	NP
691	https://www.mspb.gov/decisions/nonprecedential/Jones_Sonya_R_AT-1221-20-0649-W-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD SONYA R. JONES, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER AT-1221-20-0649-W-1 DATE: August 15, 2024 THIS ORDER IS NONPRECEDENTIAL1 Raymond Mitchell , Columbia, South Carolina, for the appellant. Karla Brown Dolby , Esquire, Decatur, Georgia, for the agency. Karen Rodgers , Esquire, Montgomery, Alabama, for the agency. BEFORE Cathy A. Harris, Chairman Raymond A. Limon, Vice Chairman Henry J. Kerner, Member* *Member Kerner recused himself and did not participate in the adjudication of this appeal. REMAND ORDER The appellant has filed a petition for review of the initial decision, which dismissed her individual right of action (IRA) appeal for lack of jurisdiction. For 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). the reasons discussed below, we GRANT the appellant’s petition for review, REVERSE the initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND On July 2, 2020, the appellant, a GS-9 Contract Specialist, filed an appeal with the Board alleging that the agency had exhibited favoritism and denied her the opportunity for a promotion as a result of her union affiliation. Initial Appeal File (IAF), Tab 1 at 2-3. The appellant also alleged that the agency preselected whom it hired based on personal relationships. Id. at 3. With her initial appeal form, the appellant provided a May 4, 2020 close-out letter from the Office of Special Counsel (OSC) wherein OSC indicated that it was closing its investigation into the appellant’s allegations that, because of her union affiliation, “job opportunities [were] limited, [she] received comments on [her] performance review, and managers [had] made statements about the amount of time [she spent] on union matters.” Id. at 8. The appellant requested a hearing on the matter. Id. at 2. The administrative judge issued a jurisdictional order wherein he explained the circumstances under which the Board has jurisdiction to adjudicate IRA appeals, and he ordered the appellant to file specific evidence and argument regarding jurisdiction. IAF, Tab 3 at 1-8. In response, the appellant identified her protected disclosure/activity as “[l]ocal [u]nion [r]epresentative” and “[r]eported unethical/unfair labor practices by management to [third] parties.” IAF, Tab 6 at 4. She identified the personnel action at issue as “[c]ontinue[d] to overlook [the] appellant and manipulate the hiring process as well as the promotion process which [did] not give her a fair opportunity to advance in her career.” Id. at 4-5. Without holding the appellant’s requested hearing, the administrative judge issued an initial decision dismissing the appeal for lack of jurisdiction. IAF, Tab 12, Initial Decision (ID) at 1, 10. The administrative judge concluded that2 the appellant had failed to make a nonfrivolous allegation that she had either made a protected disclosure or engaged in protected activity insofar as her assertions related thereto were “impermissibly vague.” ID at 6-7, 9. In so finding, he explained that the appellant’s mere union affiliation and/or status as a union representative did not constitute protected activity under 5 U.S.C. § 2302(b)(9). ID at 9. He also concluded that the appellant had failed to make a nonfrivolous allegation of a personnel action. ID at 7-9. The appellant has filed a petition for review, and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3. The appellant provides additional documents with her petition for review. PFR File, Tab 1 at 6-129. DISCUSSION OF ARGUMENTS ON REVIEW To establish jurisdiction in a typical IRA appeal, an appellant must show by preponderant evidence2 that she exhausted her remedies before OSC and make nonfrivolous allegations of the following: (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in a 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). Corthell v. Department of Homeland Security , 123 M.S.P.R. 417, ¶ 8 (2016), overruled on other grounds by Requena v. Department of Homeland Security , 2022 MSPB 39. A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. 5 C.F.R. § 1201.4(s). The U.S. Court of Appeals for the Federal Circuit has found that, in the context of an IRA appeal, a nonfrivolous allegation is an allegation of “sufficient factual matter, accepted as true, to state a claim that is plausible on its face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1364, 1369 (Fed. Cir. 2020). 2 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 For the reasons set forth herein, we disagree with the administrative judge’s conclusion that the appellant failed to establish Board jurisdiction, and we remand the matter for adjudication of the merits. Of note, the appellant asserts on review that she “was not aware that she was required to present all evidence while the [a]dministrative [j]udge was determining jurisdiction,” PFR File, Tab 1 at 4, and she provides additional allegations and evidence, to include a narrative statement, a witness statement, emails, and various correspondence with OSC personnel, id. at 6-129. The Board generally will not consider evidence submitted for the first time on review absent a showing that it was unavailable before the record was closed despite the party’s due diligence, nor will it 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); Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). Because the appellant here fails to show that the new evidence/argument that she provides was unavailable to her despite her due diligence, we herein cite the same only insofar as it clarifies and provides context for allegations that the appellant made before the administrative judge. The appellant made a nonfrivolous allegation that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) and showed that she exhausted her administrative remedies regarding this disclosure. The appellant has averred that, in January 2020, she asked her supervisor why a particular employee had been promoted to a GS-11 position even though the agency had never posted a vacancy announcement for such a position. IAF, Tab 6 at 5; PFR File, Tab 1 at 8. She alleged that she questioned agency management personnel as to why she and other eligible employees had not been permitted to compete for this position. IAF, Tab 1 at 3, Tab 6 at 5; PFR File, Tab 1 at 8. The appellant explains that, after her supervisor failed to answer her verbal and written inquiries, she contacted both the Acting Director/Deputy4 Director of Contracting and the former Director of Contracting regarding this issue. PFR File, Tab 1 at 8. She also explains that “after [she] continued questioning the promotion to management and [the American Federation of Government Employees (AFGE)]” it came to light that the selectee and the Acting Director/Deputy Director of Contracting were acquaintances who had attended the same church and, ultimately, the selectee’s promotion did not occur . Id. at 9; IAF, Tab 6 at 5. A protected disclosure is one that an appellant reasonably believes evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 5 & n.3 (2013). The proper test for determining whether an employee had a reasonable belief that her disclosures were protected is whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions evidenced any of the conditions set forth in 5 U.S.C. § 2302(b)(8). Id., ¶ 5. Here, we find that the appellant may reasonably have believed that, in alerting management to the agency’s failure to advertise and/or permit competition for a particular position, she had disclosed a violation of law, rule, or regulation and/or an abuse of authority regarding the agency’s selection process. See McDonnell v. Department of Agriculture , 108 M.S.P.R. 443, ¶¶ 10-13 (2008) (finding that the appellant made a nonfrivolous allegation of statutory violations of 5 U.S.C. § 2302(b)(6) and (b)(12) when she made a disclosure regarding hiring and selection improprieties). Thus, we conclude that the appellant has made a nonfrivolous allegation of one protected disclosure under 5 U.S.C. § 2302(b)(8), i.e., her January 2020 disclosure regarding improprieties with an agency hiring decision. Moreover, we find that she exhausted her administrative remedies regarding this disclosure insofar as she provided an OSC Form-14 wherein she made specific allegations to5 OSC regarding this disclosure. PFR File, Tab 1 at 101-02; see Mudd, 120 M.S.P.R. 365, ¶ 12 (explaining that an appellant can demonstrate exhaustion by providing, among other things, her OSC complaint). The appellant made a nonfrivolous allegation that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(B) and showed that she exhausted her administrative remedies regarding this activity. The appellant indicated that, since 2011, she has served as the sole union representative/union steward for her office. IAF, Tab 6 at 4; PFR File, Tab 1 at 14-15, 97. Documentation that she provides clarifies that her duties as union steward include both (1) mediation and (2) “speak[ing] up when things are not in accordance with [p]olicy” on behalf of agency employees. PFR File, Tab 1 at 18, 88. In her filings before the administrative judge, the appellant identified as a protected activity “AFGE: incidents vary from 2017 — 2020,” IAF, Tab 6 at 4 (punctuation as in original), and, on review, in the context of discussing her union affiliation, she clarifies that she made unspecified “informal and formal complaints” on account of her “willingness to report unethical practices,” PFR File, Tab 1 at 7, 15. Performing certain union-related duties, such as filing grievances and representing other employees in the grievance process, constitutes protected activity under 5 U.S.C. § 2302(b)(9). Alarid v. Department of the Army , 122 M.S.P.R. 600, ¶ 10 (2015); see Carney v. Department of Veterans Affairs , 121 M.S.P.R. 446, ¶¶ 5-6 (2014) (concluding that an appellant engaged in protected activity when he represented an agency employee during an informal grievance proceeding). Here, we find that the appellant’s assertions are sufficient, at the jurisdictional stage, to amount to a nonfrivolous allegation that she “lawfully assist[ed]” individuals in “the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation.” See 5 U.S.C. § 2302(b) (9)(B).3 Indeed, assisting and/or representing other employees in the grievance 3 Although 5 U.S.C. § 1221(a) limits Board appeal rights under 5 U.S.C. § 2302(b)(9) (A) to individuals who exercised appeal, complaint, or grievance rights under (i), with6 process, informal or otherwise, are typical duties of a union steward. See Hessami, 979 F.3d at 1369 n.5; see also Grimes v. Department of the Navy , 96 M.S.P.R. 595, ¶ 12 (2004) (stating that any doubt or ambiguity as to whether the appellant made nonfrivolous jurisdictional allegations should be resolved in favor of affording the appellant a hearing). Thus, we conclude that the appellant has made a nonfrivolous allegation that she engaged in protected activity under 5 U.S.C. § 2302(b)(9)(B) insofar as we interpret her assertions as allegations that, during her tenure as union steward, she frequently assisted with complaints and/or grievances on behalf of other agency employees. Insofar as the appellant provides both an OSC Form -14 and a letter from OSC evincing that she raised this activity with OSC, we also find that she showed by preponderant evidence that she exhausted her administrative remedies regarding the same. PFR File, Tab 1 at 98-99, 127. The appellant made nonfrivolous allegations of three personnel actions under 5 U.S.C. § 2302(a) and showed that she exhausted her administrative remedies regarding the same. The definition of “personnel action” includes a nonselection, i.e., an agency’s failure to make “an appointment.” See 5 U.S.C. § 2302(a)(2)(A)(i). Here, the appellant identifies three specific instances in which she was not selected for a position with the agency. First, she alleges that, in January 2018, agency management decided to promote a less -qualified candidate to a GS-11 position for which she had interviewed. PFR File, Tab 1 at 10. Second, the appellant, who resides in Columbia, South Carolina, asserts that, in September 2019, the agency posted a vacancy announcement for another GS-11 position for which she was qualified; however, the vacancy announcement did not list Columbia, South Carolina, as one of the permissible geographical locations for this position and, accordingly, the appellant did not apply. IAF, Tab 1 at 2; PFR regard to remedying a violation of section 2302(b)(8), there is no such jurisdictional restriction for individuals filing a Board appeal pursuant to 5 U.S.C. § 2302(b)(9)(B). Carney, 121 M.S.P.R. 446, ¶ 6 n.3.7 File, Tab 1 at 7-8, 28-30. She avers that the agency nonetheless hired a candidate for its Columbia location from this vacancy announcement, i.e., that the agency misleadingly advertised the position to purposefully dissuade her from applying. PFR File, Tab 1 at 7-8. Last, as discussed above, the appellant alleges that, in December 2019, she learned that another employee was being promoted to a GS- 11 position despite the agency never advertising this promotional opportunity; however, following her purported disclosures regarding the agency’s selection process, the employee ultimately did not receive the promotion. IAF, Tab 6 at 5; PFR File, Tab 1 at 8-9, 33-39. We find that, through these assertions, the appellant has made nonfrivolous allegations of three nonselections, i.e., three personnel actions under 5 U.S.C. § 2302(a)(2)(A)(i). See Ruggieri v. Merit Systems Protection Board , 454 F.3d 1323, 1326 (Fed. Cir. 2006) (explaining that a nonselection is a cognizable personnel action even when the agency does not select another candidate to fill the subject position); see also Weed v. Social Security Administration , 113 M.S.P.R. 221, ¶¶ 4, 13-17 (2010) (concluding that an agency’s purported use of “a particular selection process as part of a scheme that would deny a whistleblower an opportunity to seek [an] appointment” constituted a nonfrivolous allegation of a nonselection). Moreover, insofar as the appellant provided an OSC Form -14 and a close-out letter evincing that she raised with OSC the agency’s purported efforts to hamper her promotion to a GS-11 position, we find that she has exhausted her administrative remedies regarding the same. IAF, Tab 1 at 8; PFR File, Tab 1 at 97-102, 107. The appellant has satisfied the contributing factor jurisdictional criterion regarding her protected activity under 5 U.S.C. § 2302(b)(9)(B) only. To satisfy the contributing factor criterion at the jurisdictional stage, an appellant need only raise a nonfrivolous allegation that the fact of, or content of, the protected disclosure or activity was one factor that tended to affect the personnel action in any way. See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 13 (2016). One way that an appellant may satisfy this8 criterion is through circumstantial evidence, such as evidence that the official taking the personnel actions at issue knew of the appellant’s protected disclosure/ activity and the personnel action occurred within a period of time such that a reasonable person could conclude that the protected disclosure/activity was a contributing factor in the personnel actions at issue. 5 U.S.C. § 1221(e)(1)(A)- (B); Salerno, 123 M.S.P.R. 230, ¶ 13. Here, although we find that the appellant made a nonfrivolous allegation of a protected disclosure under 5 U.S.C. § 2302(b)(8), insofar as all of the personnel actions at issue predated this January 2020 disclosure, the appellant’s disclosure could not have contributed to the same. See El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 10 (2015) (explaining that because the subject personnel action predated the disclosure, there was no way that the disclosure could have contributed to the personnel action), aff’d, 663 F. App’x 921 (Fed. Cir. 2016). Regarding her 5 U.S.C. § 2302(b)(9)(B) activity, however, the appellant has indicated that she has continually represented agency employees in her capacity as union steward from 2011 to the present. IAF, Tab 6 at 4; PFR File, Tab 1 at 14-15. Indeed, her filings clarify that, in April 2018, agency leadership was notified that she had been “granted 50% official time for union representation.” PFR File, Tab 1 at 12-13, 79-89. Insofar as the appellant has alleged (1) a close temporal proximity between this ostensibly ongoing protected activity and the personnel actions at issue and (2) that agency management had knowledge of the same, we find that she has satisfied the contributing factor jurisdictional criterion regarding her 5 U.S.C. § 2302(b)(9)(B) protected activity. Accordingly, we find that the appellant made a nonfrivolous allegation that her protected activity contributed to her three nonselections and, therefore, that she is entitled to her requested hearing and a decision on the merits of her appeal. IAF, Tab 1 at 2; see Salerno, 123 M.S.P.R. 230, ¶ 5. Prior to conducting a hearing, the administrative judge shall afford the parties a reasonable opportunity to complete discovery and order the parties to submit any other evidence that he9 deems necessary to adjudicate the merits of this appeal. Lewis v. Department of Defense, 123 M.S.P.R. 255, ¶ 14 (2016). ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.10	Jones_Sonya_R_AT-1221-20-0649-W-1_Remand_Order.pdf	2024-08-15	SONYA R. JONES v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-20-0649-W-1, August 15, 2024	AT-1221-20-0649-W-1	NP
692	https://www.mspb.gov/decisions/nonprecedential/Sablan_DanielSF-0752-20-0199-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DANIEL SABLAN, Appellant, v. DEPARTMENT OF THE NAVY, Agency.DOCKET NUMBER SF-0752-20-0199-I-1 DATE: August 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Mark J. Leighton , Bremerton, Washington, for the appellant. Joshua J. Roever , Bremerton, Washington, 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 removal appeal for failure to prosecute. On petition for review, the appellant asserts that he did not fully understand the timeframes set by the administrative judge due to circumstances that arose during the Covid-19 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). pandemic. He also asserts that he experienced complications with the Board’s website and believed that he had completed the required response. 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 and2 AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS3 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. 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 Regarding the appellant’s argument that he did not fully understand the various deadlines because of the circumstances surrounding the Covid-19 pandemic, we note that the administrative judge issued clear and unambiguous orders that plainly set forth the deadlines, and there is no indication that either the appellant or his representative sought clarification of the administrative judge’s orders. To the extent the appellant seeks to excuse his failures to comply with the administrative judge’s orders based on the shelter-in-place order issued by the Governor of Washington (his state of residence), the Governor’s order was issued after the deadline dates set by the administrative judge in his February 7, 2020 orders. Finally, as to his claim that he experienced difficulties using e-Appeal, both the appellant and his designated representative elected to register as e-filers during the adjudication of the initial appeal. Initial Appeal File, Tab 1 at 2-3. E-filers consent to accept electronic service of Board documents. 5 C.F.R. § 1201.14(e) (1) (2020). E-filers are also responsible for monitoring case activity at e -Appeal to ensure that they have received all case-related documents and for ensuring that email from mspb.gov is not blocked by filers. 5 C.F.R. § 1201.14(j)(2)-(3) (2020). There is no evidence in the record that the appellant or his representative requested technical assistance from the Board to resolve any issues or pursued alternate means to file submissions to comply with the administrative judge’s orders. See 5 C.F.R. § 1201.14(f) (2020) (“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.”). 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	Sablan_DanielSF-0752-20-0199-I-1_Final_Order.pdf	2024-08-15	DANIEL SABLAN v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0199-I-1, August 15, 2024	SF-0752-20-0199-I-1	NP
693	https://www.mspb.gov/decisions/nonprecedential/Urquidi_Jennifer_M_DA-1221-19-0401-W-2_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JENNIFER M. URQUIDI, Appellant, v. DEPARTMENT OF HOMELAND SECURITY, Agency.DOCKET NUMBER DA-1221-19-0401-W-2 DATE: August 15, 2024 THIS ORDER IS NONPRECEDENTIAL1 Carson Bridges , Esquire, and Morgan Velasquez , Esquire, Dallas, Texas, for the appellant. Russell Wardlow and Samantha Pistol , El Paso, 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. REMAND ORDER The appellant has filed a petition for review of the initial decision, which denied her individual right of action (IRA) appeal on the merits. For the reasons discussed below, we GRANT the appellant’s petition for review, VACATE 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). initial decision, and REMAND the case to the regional office for further adjudication in accordance with this Remand Order. BACKGROUND Prior to the events at issue in this appeal, the appellant was employed as Staff Assistant to the Chief Patrol Agent (CPA) of the El Paso Sector, U.S. Border Patrol. Urquidi v. Department of Homeland Security , MSPB Docket No. DA-1221-19-0401-W-2, Appeal File (W-2 AF), Tab 21 at 4 (stipulation 1).2 The agency admits that, on several occasions between January and May 2018, the appellant witnessed two District Chiefs (DC1 and DC2) engaging in what she described in her complaint to the Office of Special Counsel (OSC) as “lewd, disgusting, and inappropriate conduct” in the office, such as slapping each other on the buttocks, pouring water on each other’s pants, mocking the voice of a coworker, and showing the appellant a photo of DC2’s excrement. W-2 AF, Tab 6 at 11, Tab 9 at 9. At the time of the incidents, the appellant protested their behavior, making comments such as “you need to act like adults” and “you all are ridiculous.” W-2 AF, Tab 9 at 9. The appellant was subsequently involved in a dispute over the office dress code. On May 15, 2018, the Director of Policy and Compliance sent the appellant a draft of a proposed dress code policy to pass on to the CPA. Id. at 10. The draft policy included a prohibition against sleeveless attire. Id. After receiving the document, the appellant asked the CPA if he had issues with her or the Deputy CPA’s Staff Assistant wearing sleeveless blouses, and the CPA indicated that he did not. Id. The CPA was away from the office on May 16, 2018, and DC1 served as acting CPA in his absence. W-2 AF, Tab 21 at 5 (stipulation 10). On May 17, 2018, after the CPA returned to the office, DC1 informed the CPA that he and other management officials believed that the appellant had been leaking 2 Under 5 C.F.R. § 1201.63, a stipulation is sufficient to prove the fact alleged. Swift v. Office of Personnel Management , 48 M.S.P.R. 441, 445 (1991 ).2 confidential information by telling other employees that the CPA would not support the draft policy. W-2 AF, Tab 9 at 11. That same day, the CPA met with the appellant and expressed his displeasure that the appellant had, in his view, inappropriately shared information and not respected the chain of command. Id. at 220-21. The appellant denied that she was the source of the rumors. Id. at 220. On May 18, 2018, the CPA filed a complaint with the Joint Intake Center (JIC) concerning the appellant’s conduct. W-2 AF, Tab 21 at 5 (stipulation 14), Tab 23 at 101-02. The complaint alleged that the appellant misused her position as the CPA’s Staff Assistant “to share sensitive information regarding a draft policy memorandum with non-managerial support staff in an apparent attempt to undermine management and influence [the CPA]’s decision.” W-2 AF, Tab 23 at 101. As a result of the CPA’s report to the JIC, the appellant was investigated for alleged abuse of her position. W-2 AF, Tab 21 at 5 (stipulation 16). Also on May 18, 2018, the CPA decided to temporarily transfer the appellant to a Mission Support Specialist position with the Sector Intelligence Unit (SIU). W-2 AF, Tab 21 at 5 (stipulation 12), Tab 23 at 9. At the direction of the CPA, the appellant’s access to Concur, a computerized travel system, was restricted on May 21, 2018. W-2 AF, Tab 21 at 5 (stipulation 19). On May 25, 2018, the appellant filed her own report with the JIC. W-2 AF, Tab 9 at 210-15. In her report, she described the offensive behavior by DC1 and DC2, as well as her oral response to their antics. Id. at 210-11. She also reported to the JIC that the CPA had spoken to her in a “low, firm, intimidating” voice on May 17, 2018. Id. at 212. She alleged that DC1 had influenced the CPA’s decision to reassign her, in an effort to keep her from reporting the inappropriate conduct by DC1 and DC2. Id. at 214-15. As a result of the appellant’s JIC complaint, the agency conducted an investigation into the conduct of DC1 and DC2 and, on January 29, 2019, it issued them letters of reprimand, finding that3 their conduct was in violation of an agency directive requiring professional workplace behavior. Id. at 36-41, 157-71. Meanwhile, on June 5, 2018, the appellant met with an equal employment opportunity (EEO) counselor and alleged that she was discriminated against based on sex when (1) DC1 and DC2 subjected her to a hostile work environment; (2) the CPA reassigned her to SIU, allegedly at the prodding of DC1; and (3) she was treated differently from male employees who were detailed or reassigned, in that she was directed to turn in her laptop and keys and her access to hard drives was removed. Id. at 185-91. On August 4, 2018, the appellant filed a formal EEO complaint, based on the same allegations. Id. at 184-85. In mid-August 2018, the appellant requested that her access to Concur be restored. Id. at 62 (declaration of the Personnel and Finance Director). Her request was denied at the direction of the CPA. Id. at 62-63. Subsequently, the appellant’s request for access to COSS, a computerized payroll system, was also denied, again at the direction of the CPA. Id. at 63-64. The appellant subsequently amended her EEO complaint to further allege that the agency discriminated against her on the basis of sex, and in reprisal for EEO activity, when management denied her requests for access to Concur and COSS. Id. at 154-56. In November 2018, the appellant was nominated for a cash award, but the Deputy CPA did not forward the nomination to the CPA for approval, and she did not receive a cash award for the year. W-2 AF, Tab 21 at 5-6. Meanwhile, in December 2018, the El Paso Sector received the completed report of investigation into the CPA’s allegations against the appellant. Id. at 5 (stipulated fact 17). On December 13, 2018, the Deputy Chief of the El Paso Sector found that there was insufficient evidence to support an administrative action against the appellant, and the case was closed. Id. (stipulated fact 18). On December 17, 2018, the appellant sent a memorandum to the CPA requesting to return to her original position. W-2 AF, Tab 6 at 42. However, on February 8, 2019, the CPA issued a4 memorandum making the appellant’s transfer to SIU permanent, effective February 17, 2019. Id. On February 11, 2019, the appellant filed a complaint with OSC. Id. at 7-12. In her complaint, she alleged that she had been harassed by DC1, DC2, and the CPA, and had suffered reprisal for “telling [DC1 and DC2] that their lewd, disgusting, and inappropriate conduct needed to stop.” Id. On June 25, 2019, after more than 120 days had passed since she filed her OSC complaint, the appellant filed an IRA appeal. Urquidi v. Department of Homeland Security , MSPB Docket No. DA-1221-19-0401-W-1, Initial Appeal File (IAF), Tab 1. The appellant notified OSC of her intent to pursue the matter before the Board, and OSC issued a close-out letter on June 27, 2019. W-2 AF, Tab 6 at 19. The IRA appeal was dismissed without prejudice, and subsequently refiled. IAF, Tab 7, Initial Decision; W-2 AF, Tab 1. Based on the parties’ written submissions, the administrative judge found that the appellant had established jurisdiction over her IRA appeal and that she was therefore entitled to a hearing. W-2 AF, Tab 10 at 5. The administrative judge determined that the issues before the Board included the following disclosures and activities: (1) reporting inappropriate conduct by her supervisors in the form of protests to DC1 and DC2, and in her May 25, 2018 complaint to the JIC; and (2) filing an EEO complaint regarding harassment and reprisal. W -2 AF, Tab 27 at 2-3. The administrative judge also identified the following alleged retaliatory personnel actions: 1.Temporarily reassigning the appellant to [SIU] on or around May 18, 2018; 2.Denying the appellant administrative rights and access to [COSS] on or around September 13, 2018, and to [Concur] since August 15, 2018; 3.Denying the appellant a cash award in or around December 2018; and5 4.Permanently reassigning the appellant to [SIU], effective February 17, 2019. Id. at 3. The administrative judge conducted a hearing on November 21 and 22, 2019. W-2 AF, Tab 28. On December 17, 2019, the administrative judge issued an initial decision denying the appellant’s request for corrective action. W-2 AF, Tab 29, Initial Decision (ID). The administrative judge found that the appellant’s statements to DC1 and DC2 were not protected disclosures under § 2302(b)(8), but that her JIC complaint did constitute protected activity under § 2302(b)(9)(C). ID at 10-11. She further found that, because the appellant’s EEO complaint did not allege a violation of § 2302(b)(8), it fell within the scope of § 2302(b)(9)(A)(ii), and thus was not within the scope of an IRA appeal. ID at 11-12. The administrative judge further found that, while the appellant’s JIC report occurred after her temporary reassignment, and therefore could not have been a contributing factor in that action, it was a contributing factor in the remaining personnel actions, i.e., the denial of Concur and COSS access, the denial of a cash award, and her permanent reassignment. ID at 13-17. However, the administrative judge went on to find that the agency demonstrated by clear and convincing evidence that it would have taken the same actions in the absence of her JIC report. ID at 17-26. The appellant has filed a timely petition for review. Petition for Review (PFR) File, Tab 3. On review, she argues that the administrative judge erred in finding that her statements to DC1 and DC2 were not protected disclosures under 5 U.S.C. § 2302(b)(8). Id. at 9-12. She further contends her disclosures to DC1 and DC2 about their unprofessional conduct were a contributing factor in her temporary reassignment, because DC1 influenced the CPA’s decision to take that action. Id. at 13-14. Finally, she argues that the administrative judge erred in finding that the agency showed by clear and convincing evidence that it would have taken the contested actions in the absence of her protected disclosures and activities. Id. at 14-22. The agency has filed a response. PFR File, Tab 5. 6 ANALYSIS The Board lacks jurisdiction over the appellant’s claims that the agency retaliated against her for filing the JIC report and EEO complaint. As an initial matter, we address the issue of the Board’s jurisdiction over the appellant’s claims of retaliation for filing her JIC report and EEO complaint. The issue of the Board’s jurisdiction is always before the Board and may be raised by either party or sua sponte by the Board at any time during a Board proceeding. Simnitt v. Department of Veterans Affairs , 113 M.S.P.R. 313, ¶ 5 (2010). The Board, in Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶¶ 10-11, clarified the substantive requirements of exhaustion. The requirements are met when an appellant has provided OSC with a sufficient basis to pursue an investigation. The Board’s jurisdiction is limited to those issues that were previously raised with OSC. However, appellants may give a more detailed account of their whistleblowing activities before the Board than they did to OSC. Id. Appellants may demonstrate exhaustion through their initial OSC complaint; evidence that they amended the original complaint, including but not limited to OSC’s determination letter and other letters from OSC referencing any amended allegations; and their written responses to OSC referencing the amended allegations. Id. Appellants also may establish exhaustion through other sufficiently reliable evidence, such as an affidavit or a declaration attesting that they raised with OSC the substance of the facts in the Board appeal. Id. To establish Board jurisdiction, the appellant must prove exhaustion with OSC by preponderant evidence, not just present nonfrivolous allegations of exhaustion. 5 C.F.R. § 1201.57(c)(1). In her response to the jurisdictional order, the appellant provided a copy of her OSC complaint, in which she alleged that she had been harassed by DC1, DC2, and the CPA, and had suffered reprisal for “telling [DC1 and DC2] that their lewd, disgusting, and inappropriate conduct needed to stop.” W-2 AF, Tab 67 at 7-12. However, the OSC complaint makes no reference to her JIC report or EEO complaint.3 See id. Moreover, the appellant explicitly stated in her response to the jurisdictional order that she did not file any amendments to her original OSC complaint. Id. at 5. In light of the above, we conclude that the appellant did not show by preponderant evidence that she exhausted her remedies with OSC with respect to her claims of reprisal for the JIC report and EEO complaint.4 Because we lack jurisdiction over these claims, we vacate the portions of the initial decision that addressed them on the merits. The appellant’s oral protests to DC1 and DC2 were protected disclosures under 5 U.S.C. § 2302(b)(8). We next turn to the appellant’s remaining claim, i.e., that she was retaliated against for protesting the conduct of DC1 and DC2. To prevail on the merits in an IRA appeal alleging retaliation for protected disclosures, the appellant must establish a prima facie case of retaliation by proving by a preponderance of the evidence5 that she made a protected disclosure that was a contributing factor in a personnel action taken against her. Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 12 (2015); see 5 U.S.C. § 1221(e)(1). If the appellant makes out a prima facie case, then the agency is provided the opportunity to prove, by 3 In subsequent email correspondence with the OSC investigator, the appellant mentioned her EEO complaint and provided a copy of her JIC report, both of which contain many of the same allegations set forth in her original OSC complaint. Id. at 21-22. Again, however, the appellant did not allege that the agency retaliated against her for either the EEO complaint or the JIC report. See id. 4 Even if the appellant had exhausted her OSC remedies with respect to the EEO complaint, the matter would still lie outside the Board’s IRA jurisdiction, because the EEO complaint did not seek to remedy a violation of § 2302(b)(8), and thus is not protected activity under § 2302(b)(9)(A)(i). See Young v. Merit Systems Protection Board, 961 F.3d 1323, 1329 (Fed. Cir. 2020); Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶ 7 (2013). 5 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).8 clear and convincing evidence,6 that it would have taken the same personnel action in the absence of the protected disclosures. 5 U.S.C. § 1221(e)(2); Mastrullo, 123 M.S.P.R. 110, ¶ 12. To establish that she made a protected disclosure, the appellant must demonstrate by preponderant evidence that she disclosed information that she reasonably believed evidenced a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Mithen v. Department of Veterans Affairs , 119 M.S.P.R. 215, ¶ 13 (2013). Here, the administrative judge found that the appellant failed to show that her statements to DC1 and DC2 were protected, because “her expressions of disgust did not convey any information.” ID at 9. The administrative further found that the appellant “did not identify any law, rule, or regulation that she believed [DC1] and [DC2] violated,” and that her statements did not report information that a reasonable person would believe evidenced gross mismanagement or an abuse of authority. Id. Accordingly, she concluded that the appellant’s statements to DC1 and DC2 did not constitute protected disclosures. Id. We disagree with the administrative judge’s finding that the appellant’s statements to DC1 to DC2 did not convey information. The appellant unmistakably conveyed to DC1 and DC2 that their behavior was unprofessional and inappropriate for the workplace (“you need to act like adults”). Moreover, it is irrelevant that DC1 and DC2 were already aware of their own behavior. The Whistleblower Protection Act, as amended by the Whistleblower Protection Enhancement Act of 2012, specifically provides that disclosures are not disqualified from protection because they were made to a person who participated in the activity that is the subject of the disclosure, or because the disclosure revealed information that had previously been disclosed. 5 U.S.C. § 2302(f)(1) 6 Clear and convincing evidence is that measure or degree of proof that produces in the trier of fact a firm belief as to the allegations sought to be established. 5 C.F.R. § 1209.4(e). 9 (A)-(B); see Day v. Department of Homeland Security , 119 M.S.P.R. 589, ¶ 18 (2013). Furthermore, we find that the appellant’s statements to DC1 and DC2 disclosed information that she reasonably believed evidenced a violation of law, rule, or regulation.7 Ordinarily, to make a protected disclosure of a law, rule, or regulation, an employee must identify the specific law, rule, or regulation that was violated. Langer v. Department of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001). However, an individual need not identify a statutory or regulatory provision by a particular title or number “when the statements and the circumstances surrounding the making of those statements clearly implicate an identifiable violation of law, rule, or regulation.” Id. As the agency itself noted in the letters of reprimand it issued to DC1 and DC2, their conduct was plainly in violation of a specific, numbered agency directive requiring that employees “will be professional in their contact with supervisors, subordinates, co-workers, and members of the public.” W-2 AF, Tab 9 at 36, 39-40. Accordingly, we conclude that the appellant’s statements to DC1 and DC2 were protected disclosures under § 2302(b)(8). The appellant’s disclosures to DC1 and DC2 were a contributing factor in all of the contested personnel actions, including her temporary assignment. Having found that the appellant’s statements to DC1 and DC2 were protected disclosures, we next inquire whether they were a contributing factor in the contested personnel actions. The term “contributing factor” means any 7 We agree with the administrative judge that the appellant did not disclose information that a reasonable person would believe evidenced an abuse of authority or gross mismanagement. See Herman v. Department of Justice , 115 M.S.P.R. 386, ¶ 11 (2011) (stating that an abuse of authority occurs when there is an arbitrary or 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 preferred other persons); see also Swanson v. General Services Administration , 110 M.S.P.R. 278, ¶ 11 (2008) (stating that gross mismanagement means a management action or inaction that creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission). 10 disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action regarding the individual making the disclosure. Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 21 (2016). The most common way of proving the contributing factor element is the “knowledge/timing test.” Id. Under that test, an appellant can prove that her disclosure was a contributing factor in a personnel action through evidence that the responsible agency official knew of the whistleblowing disclosure and took the personnel action within a period of time such that a reasonable person could conclude that a disclosure was a contributing factor in a personnel action. Id.; see 5 U.S.C. § 1221(e)(1). An appellant may satisfy the knowledge prong of the knowledge/timing test by proving that the official taking the action had constructive knowledge of the protected disclosure, even if the official lacked actual knowledge. Nasuti v. Department of State , 120 M.S.P.R. 588, ¶ 7 (2014). One way of establishing constructive knowledge is to show that an individual with actual knowledge influenced the official accused of taking the retaliatory action. Id. In an IRA appeal, the party before the Board is the agency, not its individual officials, and lack of knowledge by a particular official is not dispositive. Id. As noted above, it is undisputed that, on May 17, 2018, the day before the appellant’s temporary reassignment, DC1 informed the CPA that he and other management officials believed that the appellant was the source of rumors concerning the dress code. Thus, the CPA had at least constructive knowledge of the appellant’s disclosures to DC1 and DC2 when he temporarily reassigned the appellant, based in part on DC1’s allegation. Similarly, for the same reasons, the CPA had at least constructive knowledge of the appellant’s disclosures when he later denied her requests for Concur and COSS access and made the reassignment permanent. The record also reflects that the Deputy CPA received the results of the investigation into the appellant’s JIC complaint before he made the decision not to forward her nomination for a cash award. Hearing Recording (testimony of Deputy CPA). Thus, he would have been aware of the appellant’s disclosures to11 DC1 and DC2, which were referenced in the report of investigation. See W-2 AF, Tab 9 at 159, 167 (noting the appellant’s statement that she and another coworker “expressed their disgust” to DC1 and DC2). Furthermore, all of the contested personnel actions were close enough in time to the appellant’s protected disclosures that a reasonable person could conclude that the disclosures were a contributing factor in those actions. See 5 U.S.C. § 1221(e)(2); see also Schnell v. Department of the Army , 114 M.S.P.R. 83, ¶ 22 (2010) (finding that a personnel action taken within approximately 1 to 2 years after the protected disclosure satisfies the timing component of the knowledge/timing test). Thus, we find that the appellant has met her burden of showing that her protected disclosures to DC1 and DC2 were a contributing factor in all of the contested personnel actions. We remand the case to the regional office. The remaining question to be decided is whether the agency has shown by clear and convincing evidence that it would have taken the contested actions absent the appellant’s protected disclosures to DC1 and DC2. In determining whether an agency has shown by clear and convincing evidence that it would have taken the personnel action absent the protected activity, the Board will consider all of the relevant factors, including the following (“ Carr 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 did not engage in such protected activity, but who are otherwise similarly situated. Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 11; see Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999).8 The Board considers all of the evidence, including 8 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals for the Federal Circuit on these types of whistleblower issues. However, pursuant to the All Circuit Review Act, Pub. L. No. 115-195, appellants may file petitions for judicial review of Board decisions in whistleblower reprisal cases with any circuit court of12 evidence that detracts from the conclusion that the agency met its burden. Soto, 2022 MSPB 6, ¶ 11; see Whitmore v. Department of Labor , 680 F.3d 1353, 1368 (Fed. Cir. 2012). The administrative judge is in the best position to conduct the required analysis, because she is the one who heard the live testimony and made credibility determinations. See Shibuya v. Department of Agriculture , 119 M.S.P.R. 537, ¶ 37 (2013). We therefore remand the case to the regional office for the administrative judge to assess the Carr factors and determine whether the agency would have taken the contested actions absent the appellant’s disclosures to DC1 and DC2. See id., ¶¶ 37-38. We stress that, in considering the second Carr factor, the Board will consider not only any retaliatory motive to retaliate on the part of the agency official who ordered the action, but also any motive to retaliate on the part of other agency officials who influenced the decision. McCarthy v. International Boundary and Water Commission , 116 M.S.P.R. 594, ¶ 62 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012); see Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 29 (2014) (finding that the evidence reflected a motive on the part of the agency to retaliate, especially in light of the appellant’s supervisor’s role in reporting the appellant’s alleged misconduct). Accordingly, on remand, the administrative judge should consider any evidence of retaliatory motive on the part of DC1, or DC2, if he also influenced any of the contested personnel actions. See Herman v. Department of Justice , 119 M.S.P.R. 642, ¶ 20 (2013). appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). Therefore, we must consider these issues with the view that the appellant may seek review of this decision before any appropriate court of appeal. 13 ORDER For the reasons discussed above, we remand this case to the regional office for further adjudication in accordance with this Remand Order. FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.14	Urquidi_Jennifer_M_DA-1221-19-0401-W-2_Remand_Order.pdf	2024-08-15	JENNIFER M. URQUIDI v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-1221-19-0401-W-2, August 15, 2024	DA-1221-19-0401-W-2	NP
694	https://www.mspb.gov/decisions/nonprecedential/Christmas_KimmeoDC-0752-20-0349-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD KIMMEO CHRISTMAS, Appellant, v. DEPARTMENT OF EDUCATION, Agency.DOCKET NUMBER DC-0752-20-0349-I-1 DATE: August 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Claire Cooke , Esquire, Dallas, Texas, for the appellant. Eun Kim , Esquire, Washington, D.C., for the agency. BEFORE Cathy A. Harris , Chairman Raymond A. Limon , Vice Chairman Henry J. Kerner , Member FINAL ORDER The appellant has filed a petition for review of the initial decision, which sustained the appellant’s 30-day suspension based on four charges of misconduct. The appellant has filed a petition for review, arguing, among other things, that the administrative judge erred in his factual findings and credibility determinations, erred in sustaining the charges, failed to consider mitigating factors, and erred in 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). finding that the agency action was not taken in reprisal for whistleblowing and in retaliation for equal employment opportunity (EEO) activity. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b). As noted, the appellant disputes the administrative judge’s finding that she failed to establish that she made a protected disclosure under 5 U.S.C. § 2302(b) (8). Initial Appeal File (IAF), Tab 39, Initial Decision (ID) at 29; Petition for Review (PFR) File, Tab 4 at 13. Specifically, she argues that she disclosed in an email addressed to her supervisor and the deciding official that her supervisor smelled as if she drank alcohol either on-duty or right before reporting to duty. 2 The appellant argues that the administrative judge did not consider all of the evidence, but the 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). The appellant also argues that charges three and four should have been merged, but because the charges have different elements of proof, merger was not appropriate. See Shiflett v. Department of Justice , 98 M.S.P.R. 289, ¶ 5 (2005); Mann v. Department of Health & Human Services , 78 M.S.P.R. 1, 7 (1998).2 PFR File, Tab 4 at 13. However, the actual language of her email does not reflect such a disclosure. The relevant portion of the email chain begins with the appellant emailing her supervisor as follows: “Respectfully, I need to bring to your (sic) I smelled a strong odor and it was so strong and smelled close to alcohol. I could be mistaken.” IAF, Tab 28 at 36. When her supervisor responded that she took offense to the implication that she smelled of alcohol, the appellant responded “[m]y apologies but I did smell a strong odor. Thanks.” Id. To establish that she made a protected disclosure, the appellant must demonstrate by preponderant evidence that she disclosed information that she reasonably believed evidenced a situation covered by 5 U.S.C. § 2302(b)(8)(A). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 6 (2016). Whether an employee has a reasonable belief is determined by an objective test: whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the matters disclosed show one of the categories of wrongdoing set out in the statute. Id. The appellant need not prove that the matter disclosed actually established one of the situations detailed under 5 U.S.C. § 2302(b)(8)(A); rather, the appellant must show that the matter disclosed was one which a reasonable person in her position would believe evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8) (A). Webb v. Department of the Interior , 122 M.S.P.R. 248, ¶ 6 (2015). The appellant’s email does not disclose information that a disinterested observer could reasonably believe evidenced one of the categories of wrongdoing under 5 U.S.C. § 2303(b)(8)(A). In the email, the appellant does not expressly accuse her supervisor of consuming alcohol, resorting instead to vague references to smelling a “strong odor” that smelled “close to alcohol.” IAF, Tab 28 at 36. Further, she makes no other statements that would indicate that she believed her supervisor was intoxicated or otherwise impaired while on duty. Id. Thus, the appellant merely stated that she smelled a strong odor, which may have been3 alcohol, but concludes that she may have been mistaken. Id. Such vague, conclusory, and unsupported allegations are insufficient to establish a protected disclosure. Rebstock Consolidation v. Department of Homeland Security , 122 M.S.P.R. 661, ¶ 12 (2015); see Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 9 (2016) (finding that the appellant’s conclusory assertions, without any further details, were insufficient to establish that the appellant made in a protected disclosure) . Accordingly, we agree with the administrative judge’s findings that the appellant failed to establish that she made a protected disclosure under 5 U.S.C. § 2302(b)(8).3 ID at 29. 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. 3 The appellant also disputes the administrative judge’s finding that she failed to establish that her EEO activity was a motivating factor in her removal. PFR File, Tab 4 at 13; ID at 26. We find that the administrative judge came to the reasoned conclusion that the appellant failed to establish that her EEO activity was a motivating factor in the adverse action. ID at 26. Accordingly, we need not reach the question of whether the appellant met the more stringent burden to show that her EEO activity was a but-for cause of the agency’s action. See Pridgen v. Office of Management and Budget , 2022 MPSB 31, ¶¶ 20-22. 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 Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If 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 you5 were affected by an action that is appealable to the Board and that 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.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. 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	Christmas_KimmeoDC-0752-20-0349-I-1_Final_Order.pdf	2024-08-15	KIMMEO CHRISTMAS v. DEPARTMENT OF EDUCATION, MSPB Docket No. DC-0752-20-0349-I-1, August 15, 2024	DC-0752-20-0349-I-1	NP
695	https://www.mspb.gov/decisions/nonprecedential/Johnson_Ellsworth_K_AT-315H-23-0220-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ELLSWORTH K JOHNSON III, Appellant, v. DEPARTMENT OF DEFENSE, Agency.DOCKET NUMBER AT-315H-23-0220-I-1 DATE: August 15, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Eric F. Adams , Esquire, Huntsville, Alabama, for the appellant. Paul Y. Kim , Esquire, Redstone Arsenal, Alabama, for the agency. Rachel Heafner , Esquire, Huntsville, Alabama, 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 his probationary termination appeal for lack of jurisdiction. On petition for review, the appellant argues that the racial discrimination he allegedly experienced was a preappointment reason for his termination under 5 C.F.R. 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite 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). § 315.806(c), entitling him to the procedural protections of 5 C.F.R. § 315.805. 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	Johnson_Ellsworth_K_AT-315H-23-0220-I-1_Final_Order.pdf	2024-08-15	ELLSWORTH K JOHNSON III v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-315H-23-0220-I-1, August 15, 2024	AT-315H-23-0220-I-1	NP
696	https://www.mspb.gov/decisions/nonprecedential/Hawkins_Julius_R_SF-0752-20-0541-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD JULIUS R. HAWKINS, Appellant, v. UNITED STATES POSTAL SERVICE, Agency.DOCKET NUMBER SF-0752-20-0541-I-1 DATE: August 14, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Julius R. Hawkins , North Highlands, California, pro se. Catherine V. Meek , 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 his removal appeal for failure to prosecute. On petition for review, the appellant argues the merits of his removal without addressing the dismissal for failure to prosecute. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). NOTICE OF APPEAL RIGHTS2 You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum. Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions 2 Since the issuance of the initial decision in this matter, the Board may have updated the notice of review rights included in final decisions. As indicated in the notice, the Board cannot advise which option is most appropriate in any matter.2 about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information. (1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A). If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. (2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain3 judicial review of this decision —including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board , 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court -appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . Alternatively, you may request review by the Equal Employment Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision. If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is: Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013 4 If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to: Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507 (3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B). If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address: U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439 3 The original statutory provision that provided for judicial review of certain whistleblower claims by any court of appeals of competent jurisdiction expired on December 27, 2017. The All Circuit Review Act, signed into law by the President on July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 132 Stat. 1510. 5 Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case. Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx . FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C.6	Hawkins_Julius_R_SF-0752-20-0541-I-1_Final_Order.pdf	2024-08-14	JULIUS R. HAWKINS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-20-0541-I-1, August 14, 2024	SF-0752-20-0541-I-1	NP
697	https://www.mspb.gov/decisions/nonprecedential/Benton_CharlesAT-0831-22-0512-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD CHARLES BENTON, Appellant, v. OFFICE OF PERSONNEL MANAGEMENT, Agency.DOCKET NUMBER AT-0831-22-0512-I-1 DATE: August 14, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Charles Benton , Buford, Georgia, pro se. Tiffany Slade , 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 a petition for review of the initial decision, which affirmed the Office of Personnel Management’s reconsideration decision informing the appellant that he was not eligible for retirement as a law enforcement officer (LEO). On petition for review, the appellant reasserts 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). argument from below that his civil rights were violated as it relates to his disability and that he should have been treated with “dignity and respect.” Petition for Review (PFR) File, Tab 1 at 1. Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous 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 2 The appellant submits with his petition for review documentation regarding a 2011 Office of the Inspector General (OIG) complaint, a 2023 LEO salary table for the locality including Atlanta, Georgia, and copies of the 14th Amendment’s discussion of equal protection, the text of 42 U.S.C. § 1981, and the Board’s online instruction tutorial regarding how to file an appeal. PFR File, Tab 1 at 2-10. 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 closed before the administrative judge despite the party’s due diligence. See Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980 ). Here, the record closed on December 23, 2023. IAF, Tab 18 at 2. The 2011 OIG complaint predates the close of record, and the appellant has not explained why he was unable to submit it then. PFR File, Tab 1. Although the remaining documents are undated, the appellant has not shown that the information contained in them postdates the close of record. See 5 C.F.R. § 1201.115(d) (explaining that, to constitute new and material evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed). In any event, the appellant has not explained how any of the documents submitted on review are of sufficient weight to warrant an outcome different than that of the initial decision. PFR File, Tab 1. Thus, none 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 for2 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: review based on new evidence absent a showing that it is of sufficient weight to warrant an outcome different from that of the initial decision). 3 Since the issuance of the initial decision in this matter, the Board may have updated the notice 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	Benton_CharlesAT-0831-22-0512-I-1_Final_Order.pdf	2024-08-14	CHARLES BENTON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0831-22-0512-I-1, August 14, 2024	AT-0831-22-0512-I-1	NP
698	https://www.mspb.gov/decisions/nonprecedential/Rodden_Tammy_R_CH-0714-19-0340-I-1_Remand_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD TAMMY RENEE RODDEN, Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Agency.DOCKET NUMBER CH-0714-19-0340-I-1 DATE: August 14, 2024 THIS ORDER IS NONPRECEDENTIAL1 Janet Constance , Kansas City, Missouri, for the appellant. Robert J. Harrison , Hot Springs, Arkansas, for the appellant. Ruth Russell , Esquire, Kansas City, Missouri, 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 affirmed her removal pursuant to 38 U.S.C. § 714. For the reasons discussed 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). below, we GRANT the 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. BACKGROUND ¶2The appellant was a GS-6 Practical Nurse for the agency. Initial Appeal File (IAF), Tab 8 at 16. Suspecting that the appellant was abusing sick leave, on January 9, 2019, her supervisor placed her under a leave restriction, which provided in relevant part as follows: Effective immediately, you are required to present me a statement from your private physician for any absence you claim is due to sickness for you or a family member. This statement is to indicate the date(s) you visited the doctor and his/her statement that you were unable to report for duty for the entire period of your absence on the first day you return to duty. Sick leave must be requested on the first day of the absence. Id. at 62. ¶3Subsequently, on March 27, 2019, the agency proposed the appellant’s removal for attendance-related incidents occurring both before and after the leave restriction letter, ranging from November 2018 to March 2019. Id. at 28-31. In its proposal notice, the agency charged the appellant with three specifications of failure to follow sick leave abuse restriction memorandum, five specifications of absence without leave (AWOL), and seven specifications of failure to follow leave requesting procedures. Id. at 28-29. After the appellant responded, the deciding official issued a decision removing her effective April 17, 2019. Id. at 16, 22-27. The deciding official sustained all three charges and all the supporting specifications except for Charge 2, Specification 2. Id. at 22. The agency removed the appellant pursuant to the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017 (VA Accountability Act), Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (codified at 38 U.S.C. § 714). 2 ¶4The appellant filed a Board appeal, challenging the merits of the removal and raising affirmative defenses of harmful procedural error and retaliation for filing a prior Board appeal. IAF, Tab 1 at 3, 5, Tab 18 at 2-5. After a hearing, the administrative judge issued an initial decision affirming the appellant’s removal. IAF, Tab 38, Initial Decision (ID). The administrative judge sustained all three charges, but she did not sustain Charge 1, Specification 3 or Charge 3, Specifications 1 and 6. ID at 10-18. She found that the appellant failed to prove her affirmative defenses, and that the removal penalty was reasonable and promoted the efficiency of the service.2 ID at 18-22. ¶5The appellant has filed a petition for review in which she does not contest the administrative judge’s findings of fact or legal analysis and instead argues that the agency violated the Family and Medical Leave Act of 1993 (FMLA) and the administrative judge abused her discretion when she excluded evidence pertaining to her rights under the FMLA, that Charges 1 and 2 should have been merged, and that the agency committed harmful procedural error by violating the Master Labor Agreement between the agency and the American Federation of Government Employees.3 Petition for Review (PFR) File, Tab 1. The agency has responded to the petition for review. PFR File, Tab 3. 2 On review, the parties do not challenge the administrative judge’s finding that the agency proved that a nexus exists between the appellant’s misconduct and the efficiency of the service. ID at 9, 18-19. We find no reason to disturb that finding and have not addressed it further. 3 The appellant does not challenge the administrative judge’s findings on her affirmative defense of retaliation for filing a prior Board appeal. We find that the administrative judge applied the correct standard, and, for the reasons explained in the initial decision, we agree with her that the appellant did not prove this claim. ID at 19-20. The appellant’s prior Board appeal did not include any allegation of whistleblower reprisal. Rodden v. Department of Veterans Affairs , MSPB Docket No. CH-0752-16-0519-I-1.3 DISCUSSION OF ARGUMENTS ON REVIEW The administrative judge did not abuse her discretion by rejecting the appellant’s untimely evidence concerning the FMLA. ¶6The FMLA allows an employee to take up to 12 weeks of leave per year (paid or unpaid) for various purposes, subject to certain notice and certification requirements. See 5 U.S.C. §§ 6382-6383; Dias v. Department of Veterans Affairs, 102 M.S.P.R. 53, ¶ 5 (2006), aff’d per curiam , 223 F. App’x 986 (Fed. Cir. 2007); 5 C.F.R. §§ 630.1203(a)-(b), .1207-.1208. The agency bears the burden of proving that it complied with the FMLA as part of its overall burden of proving a leave -based charge. Bowen v. Department of the Navy , 112 M.S.P.R. 607, ¶ 8 (2009), aff’d per curiam , 402 F. App’x 521 (Fed. Cir. 2010). Nevertheless, an agency does not have the burden of proving the appellant’s nonentitlement to FMLA leave in all cases where the FMLA could potentially be implicated. Ellshoff v. Department of the Interior , 76 M.S.P.R. 54, 74 (1997). Unless an appellant raises nonfrivolous factual allegations, or the agency’s evidence or allegations otherwise show that FMLA-qualifying leave was involved, the Board will not examine this issue or require the agency to disprove her entitlement to FMLA leave. Id. ¶7Here, the administrative judge notified the parties on May 6, 2019, that, no later than May 31, 2019, they must file prehearing submissions identifying all facts and issues to be adjudicated. IAF, Tab 4 at 2. The administrative judge explicitly warned the parties that, “[i]n presenting evidence at the hearing, you will be limited by your prehearing submissions, except for good cause shown.” Id. at 3. In her prehearing submission, the appellant’s only mention of the FMLA was that she was submitting as an exhibit “Medical Certification for FMLA Form from a health care provider, but when the Appellant tried to give the form to turn in it was not accepted.” IAF, Tab 12 at 5-6. However, the exhibits included with the appellant’s prehearing submission did not actually include any such document. IAF, Tab 14. Nor was the FMLA issue mentioned in the subsequent4 prehearing conference summary or the appellant’s response thereto. IAF, Tabs 18, 21. It was not until the morning of the scheduled hearing on July 29, 2019, that the appellant filed a series of unexplained FMLA documents. IAF, Tab 32 at 1, Tab 33. At the beginning of the hearing, the administrative judge addressed the appellant’s filings and excluded the FMLA -related documents from evidence because they were untimely filed without any showing that they were previously unavailable and the agency would be prejudiced if they were admitted. Hearing Recording (HR), Track 1 at 0:55. ¶8Administrative judges have broad discretion to govern the proceedings before them, including the authority to rule on offers of proof and receive relevant evidence. Grubb v. Department of the Interior , 96 M.S.P.R. 361, ¶ 27 (2004); 5 C.F.R. § 120.41(b)(3). The Board will review such rulings under an abuse of discretion standard. Lopes v. Department of the Navy , 119 M.S.P.R. 106, ¶ 11 (2012). In this case, we find that the administrative judge did not abuse her discretion in excluding these documents from the record because they were untimely submitted under the terms of her order, and the appellant has not shown, or even alleged, that they were previously unavailable despite her due diligence. IAF, Tab 4 at 2; see Fritts v. Department of Homeland Security , 102 M.S.P.R. 265, ¶ 15 n.2 (2006) (finding that an administrative judge acted within his discretion when he excluded exhibits that an appellant offered for the first time on the day of the hearing when the appellant did not explain why he could not have submitted this evidence in a timely manner). The appellant had more than 3 weeks to produce these documents under the terms of the order, but she waited an additional 2 months after the deadline only to submit them on the morning of the hearing.4 The appellant argues that the agency would not be prejudiced by the 4 The appellant suggests that the administrative judge’s ruling was premised on her misapprehension that the FMLA issue was an affirmative defense. PFR File, Tab 1 at 6; IAF, Tab 34 at 12; see Ellshoff, 76 M.S.P.R. at 74. However, based on our review of the hearing recording, we find that the administrative judge’s ruling was based solely on the untimeliness of the appellant’s filing, and that she mentioned the appellant’s affirmative defenses submission as only one in a long series of missed opportunities for5 delay in submitting this evidence because the agency was already aware that she had invoked the FMLA in requesting leave for some of the absences at issue. PFR File, Tab 1 at 6. However, the agency was not aware that the appellant intended to raise the FMLA issue in her Board appeal, and we find that, by waiting until the morning of the hearing to do so, the appellant deprived the agency of any reasonable opportunity to prepare its case. The appellant’s vague allusion in her prehearing submission to an undated “Medical Certification for FMLA Form” did not constitute a nonfrivolous allegation that FMLA-qualifying leave was involved, sufficient to trigger the agency’s burden under Ellshoff. IAF, Tab 12 at 6. ¶9Moreover, even assuming that the administrative judge’s ruling constituted an abuse of discretion, the appellant has not shown that she was prejudiced by it. It is well-settled 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. Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981). The appellant asserts, without further explanation, that she attempted to raise the FMLA issue “in conjunction with the AWOL charge.” PFR File, Tab 1 at 7; IAF, Tab 34 at 13. However, the FMLA documents pertain chiefly to the illness of the appellant’s husband in late 2017 and early 2018. IAF, Tab 33 at 4-7, 10-20. We are unable to discern any connection between this FMLA request and the appellant’s unauthorized absences in late 2018 and early 2019, which supported the removal action. The record contains another FMLA request for the appellant’s own medical condition, which was expected to last from January 24 to 26, 2019. Id. at 8. However, none of the specifications underlying the appellant’s removal include those dates. IAF, Tab 8 at 28-29. Finally, the appellant argues that the agency’s own records show that she requested FMLA leave during the time period at issue. PFR File, Tab 1 at 8; IAF, Tab 8 at 35. However, the only entries indicating that FMLA was requested were for the appellant to have raised the issue. HR, Track 1 at 0:55.6 February 14 and 15, 2019, and none of the specifications cover those dates. IAF, Tab 8 at 28, 35. For these reasons, we find that the appellant has not shown that the outcome of the initial decision might have been different had the administrative judge considered her untimely submission. See Jackson v. Department of Defense , 28 M.S.P.R. 463, 465 (1985) (finding that a presiding official’s error in issuing her initial decision before the record closed was harmless because the documents the appellant sought to submit below would not have changed the outcome). The administrative judge did not err in finding that the appellant failed to prove her affirmative defense of harmful procedural error based on alleged violations of provisions of the collective bargaining agreement. ¶10To prove that the agency committed a harmful procedural error under 5 U.S.C. § 7701(c)(2)(A), the appellant must show that the agency committed an error in the application of its procedures that is likely to have caused it to reach a different conclusion from the one it would have reached in the absence or cure of the error. Ronso v. Department of the Navy , 122 M.S.P.R. 391, ¶ 14 (2015); 5 C.F.R. § 1201.4(r). The Board treats provisions of a collective bargaining agreement in the same manner as agency regulations, and a violation of those provisions may constitute harmful error. See LeBlanc v. Department of Transportation, 60 M.S.P.R. 405, 417 (1994), aff’d, 53 F.3d 346 (Fed. Cir. 1995) (Table); De Sousa v. Agency for International Development , 38 M.S.P.R. 522, 526 (1988). The appellant bears the burden of proving her affirmative defenses by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). ¶11In this case, the appellant makes two separate arguments concerning the agency’s alleged violations of the Master Labor Agreement. PFR File, Tab 1 at 7-12; IAF, Tab 27. First, she argues that the agency violated Article 24, Section 4 of the Master Labor Agreement, which places certain restrictions on the creation, keeping, and use of notes created by supervisors about their subordinates. PFR File, Tab 1 at 7-9; IAF, Tab 27 at 132. The appellant alleges7 that her supervisor violated these provisions by keeping track of her absences on a calendar outside an official system of records and using the information on the calendar to help other officials formulate the charges without ever disclosing the calendar to the appellant. PFR File, Tab 1 at 8-9; IAF, Tab 8 at 70, 77, 82, 84-92. As an initial matter, we disagree with the administrative judge that the appellant failed to raise this argument prior to the hearing. ID at 22. ¶12We find that she timely raised it in her May 21, 2019 submission on affirmative defenses. IAF, Tab 3 at 4, Tab 7 at 8. However, we agree with the administrative judge’s alternative finding that any procedural error related to the calendars was not harmful because the calendars were merely a way for the appellant’s supervisor to summarize information that was maintained elsewhere. ID at 22. The appellant argues that the agency failed to identify the sources of information from which the calendars were created, but we disagree. PFR File, Tab 1 at 9. The dates, times, and approval status of the appellant’s absences are reflected in her time and attendance sheets, and whether the appellant utilized the nurse call-in line to notify the agency of an unexpected absence is reflected in the nurse call-in line records. ID at 16; IAF, Tab 8 at 71-76, 78, 81, 83. The appellant’s remaining arguments on this issue go to whether the supervisor violated the Master Labor Agreement, but do not address whether such violation likely caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. PFR File, Tab 1 at 9; see Mattison v. Department of Veterans Affairs , 123 M.S.P.R. 492, ¶ 14 (2016) (explaining that the Board will not presume an error is harmful). ¶13Second, the appellant argues that the agency violated Article 35, Section 1 of the Master Labor Agreement when it used her approved absences as a basis for disciplinary action. PFR File, Tab 1 at 9-12; IAF, Tab 27 at 203. She argues that several of the specifications under Charges 1 and 3 involved approved leave. PFR File, Tab 1 at 10. However, we agree with the administrative judge that, under the plain language of the proposal, the agency did not discipline the8 appellant for taking leave on those dates, but instead disciplined her for failure to request leave properly. ID at 21; IAF, Tab 8 at 28. As the administrative judge correctly found, the Board has generally distinguished the failure to follow leave procedures from the taking of leave. ID at 21; see Wilkinson v. Department of the Air Force, 68 M.S.P.R. 4, 7 (1995) (finding that an agency may pursue charges related to failure to follow correct leave procedure even if the leave request was ultimately approved). ¶14The appellant attempts to distinguish Wilkinson on the basis that the instant appeal involves a Master Labor Agreement. PFR File, Tab 1 at 11-12. However, we see nothing in the Master Labor Agreement that is inconsistent with the Board’s holding in Wilkinson, and we find the appellant’s arguments to the contrary unconvincing. IAF, Tab 7 at 203. We therefore conclude that the appellant has not shown any violation of the Master Labor Agreement, much less a violation that rises to the level of harmful error. ¶15Therefore, on remand, the assigned administrative judge may incorporate these findings in the new initial remand decision. However, if any argument or evidence presented by the parties concerning the issues on remand, as set forth below, affects the administrative judge's analysis of these issues, the administrative judge should address such argument or evidence in the remand initial decision. We nevertheless remand the appeal for the assigned administrative judge to provide the parties with an opportunity to present evidence and argument regarding whether the agency’s error in reviewing the proposed removal for substantial evidence was harmful. ¶16After the initial decision in this case was issued, the U.S. Court of Appeals for the Federal Circuit decided Rodriguez v. Department of Veterans Affairs , 8 F.4th 1290, 1296-1301 (Fed. Cir. 2021), in which it determined that the agency erred by applying a substantial evidence burden of proof to its internal review of9 a disciplinary action taken under 38 U.S.C. § 714.5 The court in Rodriguez found that substantial evidence is the standard of review to be applied by the Board, not the agency, and that an agency’s deciding official must “determine[]” whether “the performance or misconduct . . . warrants” the action at issue, applying a preponderance of the evidence burden of proof. Id. at 1298-1301 (quoting 38 U.S.C. § 714(a)(1)). The Board subsequently issued the decision in Semenov v. Department of Veterans Affairs , 2023 MSPB 16, ¶¶ 21-24, in which it found that it was appropriate to apply the harmful error standard from 5 U.S.C. § 7701(c)(2) to an agency’s improper application of the substantial evidence standard to its review of proposed actions taken under 38 U.S.C. § 714. The Board also held that the Federal Circuit’s holding in Rodriguez applies to all pending cases, regardless of when the events at issue took place. Semenov, 2023 MSPB 16, ¶ 22. ¶17In describing the applicable burden of proof in appeals of actions taken under 38 U.S.C. § 714 in the initial decision, the administrative judge accurately noted that under the VA Accountability Act, the Secretary’s role is to determine whether the decision is “warranted,” and that the Board must then determine whether the decision is “supported by substantial evidence,” providing some distinction between the Board’s standard of review and the agency’s burden of proof. ID at 7-8 ( quoting 38 U.S.C. § 714(a)). Despite making this distinction, the administrative judge did not explicitly find that the agency applied a preponderant evidence burden of proof in its internal review of the charges against the appellant, nothing in the hearing testimony indicates that the deciding official applied a preponderant evidence burden of proof, and the deciding official specified in the decision letter that the charges were supported by substantial evidence. IAF, Tab 8 at 22; HR, Track 2 at 0:20-11:06 (testimony of the deciding official). The administrative judge and the parties did not have the 5 The VA Accountability Act was signed into law on June 23, 2017, prior to all of the events at issue in this appeal.10 benefit of Rodriguez, and therefore were unable to address its impact on this appeal. Accordingly, we remand this appeal for adjudication of whether the agency’s apparent application of the substantial evidence standard of proof was harmful error. See Semenov, 2023 MSPB 16, ¶ 22. On remand, the administrative judge should provide the parties with an opportunity to present evidence and argument, including a supplemental hearing, addressing whether the agency’s use of the substantial evidence standard in the removal decision constituted harmful error. Id., ¶ 24. The administrative judge should then address this affirmative defense in the remand initial decision. On remand, the assigned administrative judge should also allow the parties to supplement the record regarding whether the agency considered the Douglas factors in analyzing the penalty and should determine whether the agency proved by substantial evidence that the penalty of removal was reasonable. ¶18After the initial decision was issued, the Federal Circuit also issued its decision in Connor v. Department of Veterans Affairs , 8 F.4th 1319 (Fed. Cir. 2021). In Connor, the court determined that the agency and the Board must consider and apply the nonexhaustive factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), in its review of an agency’s penalty selection under 38 U.S.C. § 714. Connor, 8. F4th at 1325-26; see Semenov, 2023 MSPB 16, ¶¶ 44-50 (stating that, consistent with the Federal Circuit’s decision in Connor, the agency and the Board must apply the Douglas factors in reviewing the penalty in an action taken under 38 U.S.C. § 714). The court held that, although section 714 precludes the Board from mitigating the agency’s chosen penalty, “[i]t does not alter the penalty review with respect to the Douglas factors” and that, although the Board cannot mitigate the penalty, “if the Board determines that the [agency] failed to consider the Douglas factors or that the chosen penalty is unreasonable, the Board must remand to the [agency] for a redetermination of the penalty.” Connor, 8 F.4th at 1326-27 (citing Brenner v. Department of Veterans Affairs , 990 F.3d 1313, 1325 (Fed. Cir. 2021) (explaining that, “if the [Board] concludes that the [agency’s] removal decision is11 unsupported by substantial evidence, the [Board] should remand to the [agency] for further proceedings”)). ¶19In the initial decision, the administrative judge considered the reasonableness of the agency’s chosen penalty and determined that the agency did not act “outside the bounds of reasonableness” in deciding to remove the appellant, noting the fact that the agency had considered relevant factors in determining the appropriate penalty, including the frequency of the appellant’s infractions, her prior discipline, the fact that the appellant failed to respond to progressive discipline, and the impact of the appellant’s absences on the agency’s mission and employee morale. ID at 18-19. Despite this, in discussing the agency’s burden of proving a charge under 38 U.S.C. § 714 in her prehearing conference order, the administrative judge noted that the Board does not have the authority to mitigate the penalty in an action brought under section 714, and consequently, that the Board “does not apply the Douglas factors in Section 714 cases,” and that she would “not delve into the issue of what factors the agency relied on to choose the penalty.” IAF, Tab 18 at 2-3. Additionally, the removal decision does not specifically identify that the deciding official considered the relevant Douglas factors or cite to the Board’s decision in Douglas. IAF, Tab 8 at 22. ¶20However, in her hearing testimony, the deciding official identified that she considered the appellant’s response and “potential mitigation” but decided that a lesser penalty was not appropriate based on the appellant’s rejection of the offered last chance agreement. HR, Track 2 at 2:50-3:20, 7:25-8:05 (testimony of the deciding official). The deciding official also noted the fact that the appellant had a prior suspension and acknowledged that removal was generally “the next step” in progressive discipline following the appellant’s prior 30-day suspension. HR, Track 2 at 8:05-8:20 (testimony of the deciding official); IAF, Tab 8 at 22. Additionally, although the decision letter did not cite to the Board’s decision in Douglas or specifically indicate that the deciding official considered the Douglas12 factors, the decision does note that the deciding official considered the frequency of the appellant’s absences, the fact that she was “on notice” that attendance was a crucial part of her position based on her prior admonishment for attendance-related issues, and that the appellant’s misconduct was affecting the agency’s mission and the morale of the unit, and acknowledged the appellant’s 4 years of service and a 2017 performance award. IAF, Tab 8 at 22; see Douglas, 5 M.S.P.R. at 305-06 (providing a nonexhaustive list of factors relevant to penalty determinations, including, among other things, the nature and seriousness of the offense including whether it was frequently repeated, the employee’s past disciplinary record, the employee’s past work record, including length of service and job performance, and the clarity with which the employee was on notice of any rules that were violated or had been warned about the conduct in question). ¶21Thus, the record is unclear as to whether the agency properly considered the relevant Douglas factors in deciding to remove the appellant. The administrative judge and the parties did not have the benefit of Connor, and therefore were unable to address its impact on this appeal. Accordingly, remand is required for this issue as well. On remand, the assigned administrative judge should permit the parties to submit additional evidence and argument on the penalty issue, including permitting the parties to present evidence at the supplemental hearing. See Semenov, 2023 MSPB 16, ¶ 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, should remand the appellant’s removal to the agency for a new decision on the appropriate penalty. Id. (citing Connor, 8 F.4th at 1326-27; Sayers, 954 F.3d at 1375-76, 1379).6 6 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).13 ORDER ¶22For the reasons discussed above, we remand this appeal to the Central Regional Office for further adjudication in accordance with this Remand Order. As outlined above, the assigned 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 she shall determine whether the agency proved by substantial evidence that it applied the relevant Douglas factors, and that the penalty was reasonable. The administrative judge may, if appropriate, incorporate into the remand decision her prior findings concerning the agency’s proof of its charges.7 FOR THE BOARD: ______________________________ Gina K. Grippando Clerk of the Board Washington, D.C. 7 If the administrative judge finds that the agency committed harmful error such that the disciplinary action is not sustained, the administrative judge need not address the penalty issue.14	Rodden_Tammy_R_CH-0714-19-0340-I-1_Remand_Order.pdf	2024-08-14	TAMMY RENEE RODDEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-0714-19-0340-I-1, August 14, 2024	CH-0714-19-0340-I-1	NP
699	https://www.mspb.gov/decisions/nonprecedential/Carroll_Bobbie_M_DA-0752-20-0242-I-1_Final_Order.pdf	UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD BOBBIE M. CARROLL, Appellant, v. DEPARTMENT OF THE TREASURY, Agency.DOCKET NUMBER DA-0752-20-0242-I-1 DATE: August 14, 2024 THIS FINAL ORDER IS NONPRECEDENTIAL1 Robert Leon Carroll, III , Mansfield, Texas, for the appellant. Mark R. Hoggan , Fort Worth, Texas, for the agency. Isabella Demougeot and Deborah Charette , Washington, D.C., for the agency. Michael Anthony Battle , Hot Springs Village, 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 sustained her removal. Generally, we grant petitions such as this one only in the 1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). On review, the appellant argues that the administrative judge erred in not allowing one of her exhibits (Exhibit A) to be discussed at the hearing. Petition for Review (PFR) File, Tab 1 at 3. The appellant contends that Exhibit A shows that the adjudicator was removing and destroying the appellant’s Personnel Investigative Processing Systems (PIPS) checks from the investigation files, and that, contrary to the initial decision, she continued to do so during the timeframe at issue in the appeal. Id.; Initial Appeal File (IAF), Tab 14 at 11-32. The appellant further asserts that her Exhibits B and C show that she accessed the Office of Personnel Management website on most of the relevant dates and that her supervisor knowingly sent case files to the adjudicator without including the appellant’s PIPS checks. PFR File, Tab 1 at 3-4; IAF, Tab 14 at 33-38, 40. She argues that, because of alleged misconduct by her supervisor, the adjudicator, and the deciding official, the initial decision should be reversed. PFR File, Tab 1 at 3. With respect to Exhibit A, which summarizes evidence available elsewhere in the record, we find that the administrative judge did not abuse her discretion in2 requiring the appellant’s representative to refer witnesses to the original documents. See Tisdell v. Department of the Air Force , 94 M.S.P.R. 44, ¶ 13 (holding that an administrative judge has wide discretion to control the proceedings before him, to receive relevant evidence, and to ensure that the record on significant issues is fully developed); 5 C.F.R. § 1201.41(b)(6) (providing that an administrative judge has authority to regulate the course of a hearing). Furthermore, the fact that the administrative judge did not explicitly mention Exhibits A, B, and C in the initial decision does not mean that she did not consider the evidence in reaching her decision. See 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). To the contrary, the initial decision reflects that the administrative judge gave due consideration to the appellant’s evidence and arguments. We discern no error in her conclusion that the agency proved its charges by a preponderance of the evidence and that the removal penalty was within the bounds of reasonableness. 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	Carroll_Bobbie_M_DA-0752-20-0242-I-1_Final_Order.pdf	2024-08-14	BOBBIE M. CARROLL v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-0752-20-0242-I-1, August 14, 2024	DA-0752-20-0242-I-1	NP

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