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700 | https://www.mspb.gov/decisions/nonprecedential/Graham_Gery_J_SF-0752-20-0708-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERY J. GRAHAM,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-0752-20-0708-I-2
DATE: August 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.
Lawrence A. Berger , Esquire, Glen Cove, New York, for the appellant.
Katherine Bolton , Esquire, Washington, D.C., for the agency.
Samir Yakhou , 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
¶1The appellant has filed a petition for review of the initial decision, which
sustained his 30-day suspension. On petition for review, the appellant argues that
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the acts underlying his suspension did not constitute misconduct. Petition for
Review File, Tab 1 at 5-13. In particular, he asserts that the invocation of his law
enforcement position when seeking tuition assistance for his son was justified
under the circumstances and that it was not a misuse of his position. Id. at 5-8.
The appellant further asserts that his responses when questioned about outside
employment during an official investigation did not amount to a lack of candor
because the questions did not explicitly ask for the additional details he would
eventually divulge when confronted with evidence. Id. at 8-13. 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 | Graham_Gery_J_SF-0752-20-0708-I-2_Final_Order.pdf | 2024-08-14 | GERY J. GRAHAM v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-0752-20-0708-I-2, August 14, 2024 | SF-0752-20-0708-I-2 | NP |
701 | https://www.mspb.gov/decisions/nonprecedential/Snowden_Tiara_N_AT-0752-20-0174-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TIARA NICOLE SNOWDEN,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
AT-0752-20-0174-I-1
DATE: August 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tiara Nicole Snowden , San Bernardino, California, pro se.
Leidy M. Morejon , Atlanta, Georgia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal as untimely filed. For the reasons set forth below,
the appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision, or if the party filing the petition shows that
the initial decision was received more than 5 days after it was issued, within
30 days after the party received the initial decision. Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). Here, the initial
decision was issued on January 24, 2020, and thus the deadline to file a petition
for review was February 28, 2020. Initial Appeal File (IAF), Tab 8, Initial
Decision (ID) at 1, 4. The appellant did not file her petition for review until
March 1, 2021, over a year after the filing deadline. Petition for Review (PFR)
File, Tab 1. Accordingly, her petition for review is untimely filed.
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Palermo, 120 M.S.P.R.
694, ¶ 4. The party who submits an untimely petition for review has the burden
of establishing good cause for the untimely filing by showing that she exercised
due diligence or ordinary prudence under the particular circumstances of the case.
Id. To determine whether a party has shown good cause, the Board will consider
the length of the delay, the reasonableness of her excuse and the party’s showing
of due diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to her inability to timely file her
petition. Id.
The Office of the Clerk of the Board notified the appellant that her petition
for review appeared untimely filed and directed the appellant to submit a motion
asking the Board to accept her petition for review as timely filed or to waive the
time limit for good cause, accompanied by a statement signed under penalty of
perjury or an affidavit showing either that her petition was timely filed or that
there is good cause for the late filing. PFR File, Tab 2 at 1-2. Nonetheless, the
appellant did not submit a motion or signed statement requesting waiver of the2
time limit. If a party’s explanation for the untimeliness of a petition for review is
not submitted in the form of an affidavit or a statement signed under penalty of
perjury, it is insufficient to establish the assertions it contains. See Cantrell v.
U.S. Postal Service , 32 M.S.P.R. 248, 250 (1987); 5 C.F.R. § 1201.114(g).
However, even considering the appellant’s assertions in the petition for review,
we find that she has failed to demonstrate good cause for the untimeliness.
Despite the appellant’s pro se status, we note that the 1-year delay in filing
her petition is lengthy. See Wirzberger v. Department of the Treasury ,
101 M.S.P.R. 448, ¶ 8 (2006) (noting that a 1-year delay in filing a petition for
review was significant, even when considering her pro se status). The appellant
alleges that she attempted to engage in the appeals process, but that every time
she submitted documents she received a response that her appeal requests were
denied. PFR File, Tab 1 at 5. Under limited circumstances, the Board will
excuse delays in filing caused by difficulties encountered with e-Appeal.
Palermo, 120 M.S.P.R. 694, ¶ 5; see, e.g., Lamb v. Office of Personnel
Management, 110 M.S.P.R. 415, ¶ 9 (2009) (excusing the untimely filing of an
appeal when the appellant reasonably believed he filed timely by completing all
the questions on the on-line appeal form and exited the website without receiving
a clear warning that his appeal was not filed); Livingston v. Office of Personnel
Management, 105 M.S.P.R. 314, ¶ 9 (2007) (finding good cause for the untimely
filing of a petition for review in e-Appeal when the appellant created a draft of
the petition, was able to exit the Board’s website without receiving a clear
warning that he had not yet filed his pleading, and acted with due diligence in
submitting the relevant documents when he became aware of the problem). We
discern no such circumstances here. The appellant acknowledges that she
received error notices when attempting to submit her petition; thus, she did not
have a reasonable belief that her petition was timely filed. PFR File, Tab 1 at 5.
Moreover, there is nothing in the record to suggest that she sought to contact the
Board or otherwise seek to rectify the problem. As such, we find that the3
appellant’s allegations regarding e-Appeal do not demonstrate good cause for her
untimely filed petition for review.
The appellant further asserts that she was moving across the country, and
that she could not afford to move her belongings with her or travel by plane. PFR
File, Tab 1 at 5. She also asserts that she is the victim of domestic violence and
is currently living in a domestic violence shelter. Id. Although the Board is
sympathetic to the appellant’s difficult personal situation, general personal
difficulties do not constitute good cause for the waiving of a filing deadline. See
Crisp v. Department of Veterans Affairs , 73 M.S.P.R. 231, 234 (1997) (finding no
good cause shown where the appellant was going through divorce proceedings,
involved in a separate lawsuit concerning an automobile accident, attending
graduate school full-time, and seeking employment to avoid incarceration).
Moreover, financial difficulties likewise do not generally excuse an untimely
filing. Robinson v. Office of Personnel Management , 85 M.S.P.R. 589,
¶ 5 (2000).
Finally, the appellant argues that she was confused by the information that
the Board lacked a quorum to decide her appeal. PFR File, Tab 1 at 7. The
Board has found that confusion as to Board procedures does not show good cause
when the initial decision notified the appellant that it would become final by a
certain date, unless a petition for review was filed by such date. Estate of De
Palermo v. Office of Personnel Management , 53 M.S.P.R. 4, 6 (1992); see also
Bachelor v. Department of the Army , 56 M.S.P.R. 108, 110 (1992) (finding no
good cause based on the appellant’s alleged confusion when the appellant made
no effort to contact the Board and request instruction, and the initial decision
provided straightforward directions for filing the petition and the noted deadline).
The initial decision here informed the appellant in no unclear terms that it would
become final on February 28, 2020, unless a petition for review was filed by that
date. ID at 5. Moreover, there is no evidence in the record that the appellant
sought to contact the Board to clarify any confusion. Accordingly, we find that4
the appellant’s alleged confusion does not establish good cause under the
circumstances in this case.
The appellant’s remaining arguments involve the merits of her removal and
difficulties handling her appeal before the administrative judge. PFR File, Tab 1
at 5-8. These arguments do not concern the timeliness of her petition for review,
and we therefore decline to consider them. See Brame v. Department of Veterans
Affairs, 98 M.S.P.R. 224, ¶ 5 (2005). Accordingly, we dismiss the petition for
review as untimely filed. This is the final decision of the Merit Systems
Protection Board regarding the timeliness of the petition for review. The initial
decision remains the final decision of the Board regarding the appellant’s removal
appeal.
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.5
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 obtain6
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 7
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “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 | Snowden_Tiara_N_AT-0752-20-0174-I-1_Final_Order.pdf | 2024-08-14 | TIARA NICOLE SNOWDEN v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. AT-0752-20-0174-I-1, August 14, 2024 | AT-0752-20-0174-I-1 | NP |
702 | https://www.mspb.gov/decisions/nonprecedential/Diaz_SergioSF-0752-22-0588-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SERGIO DIAZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-0752-22-0588-I-1
DATE: August 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Mark Stiffler , Esquire, and Pearse Early , Esquire, San Diego, California,
for the appellant.
Erik J. Gantzel , Esquire, San Diego, 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
affirmed his removal based on charges of conduct unbecoming a Customs and
Border Protection Officer and failure to follow agency policy and procedures 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).
found that he did not prove any affirmative defenses. On petition for review, the
appellant only challenges the administrative judge’s assessment of the four
specifications of the conduct unbecoming charge. 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).
¶2We have considered the appellant’s arguments regarding the four
specifications of the conduct unbecoming charge, but they are not persuasive. For
example, regarding specification 4, the appellant asserts for the first time on
review that he had a Fifth Amendment right against self-incrimination and one of
the police officers involved in the investigation was biased against him because
he “had a previous relationship with [the officer’s] wife” and he wanted to
terminate the appellant for “revenge.” PFR File, Tab 1 at 6-7. These arguments
do not warrant a different outcome. The Board generally will not consider an
argument raised for the first time in a petition for review or evidence submitted
for the first time with a petition for review absent a showing that it is based on
new and material evidence not previously available despite the party’s due
diligence. Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016);2
Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980). The appellant
has not made such a showing.
¶3We have considered the appellant’s remaining arguments on review, but we
are not persuaded that the administrative judge erred when he found that the
agency proved the four specifications and the conduct unbecoming charge.
Regarding the other issues that the administrative judge discussed in the initial
decision, the Board will not disturb an administrative judge’s findings when he
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on issues of credibility. Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997); Broughton v. Department of Health and Human
Services, 33 M.S.P.R. 357, 359 (1987).
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.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Diaz_SergioSF-0752-22-0588-I-1_Final_Order.pdf | 2024-08-14 | SERGIO DIAZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-0752-22-0588-I-1, August 14, 2024 | SF-0752-22-0588-I-1 | NP |
703 | https://www.mspb.gov/decisions/nonprecedential/Coleman_Richard_W_DC-1221-22-0109-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICHARD W. COLEMAN JR.,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-22-0109-W-1
DATE: August 14, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael J. Riselli , Esquire, Alexandria, Virginia, for the appellant.
Supraja T. Murali , Esquire, and Lundi McCarthy Shafiei , 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
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review. Except as expressly MODIFIED to clarify the basis for concluding
that the appellant failed to meet his jurisdictional burden, we AFFIRM the initial
decision.
BACKGROUND
¶2The appellant was hired as a Supervisory Explosive Specialist with the
Pentagon Force Protection Agency (PFPA) in the Hazardous Device Branch
(hereinafter referred to as the Bomb Squad), effective June 22, 2008. Initial
Appeal File (IAF), Tab 13 at 5-6, 41. This position was within the National
Security Personnel System and included a 25% hazardous duty pay (HDP)
supplement. Id. at 9, 42-45; see 5 U.S.C. § 5545(d)(2); 5 C.F.R. § 550.904. In or
around September 2014, an anonymous complaint was made to the Department of
Defense’s Office of the Inspector General (DoD OIG) alleging that members of
the Bomb Squad were improperly receiving the HDP supplement. IAF, Tab 2
at 16-17. On January 23, 2015, Bomb Squad employees were called to a meeting
with agency managers and Human Resources (HR) officials and informed that
they had been erroneously receiving the HDP supplement and that the supplement
would be discontinued. IAF, Tab 2 at 17, Tab 13 at 11. The HDP supplement
was discontinued effective the following day, January 24, 2015. IAF, Tab 132
at 12. During a subsequent meeting with the HR Director on April 24, 2015,
Bomb Squad employees were provided with a written memorandum explaining
the basis for the January 2015 decision.2 IAF, Tab 2 at 103-04, Tab 13 at 12-13.
Specifically, they were informed that based on an analysis of the affected
employee’s positions descriptions (PDs) and in accordance with regulations
setting forth the requirements for entitlement to HDP, 5 C.F.R. § 550.904, the
employee’s PDs “inaccurately captured [their] eligibility for [HDP],” and they
were “erroneously receiving [HDP] differential.” IAF, Tab 2 at 103.
Consequently, the PDs for affected employees were revised to remove the
references to HDP and were reissued. Id.
¶3Starting after the January 23, 2015 meeting, the appellant began a
multi-year campaign challenging the agency’s decision to rescind the HDP
supplement through a variety of avenues, including by contacting various DoD
officials, Members of Congress, the DoD OIG, and the Office of Personnel
Management. On April 3, 2017, the appellant filed an OSC Form 12 “Disclosure
of Information” complaint with OSC’s Disclosure Unit (DU) regarding the
alteration of the PDs and the elimination of HDP. IAF, Tab 2 at 20-28, Tab 21
at 27-30. That complaint was closed out and referred to the Complaints
Examining Unit (CEU) on November 21, 2017. IAF, Tab 2 at 7. On October 19,
2017, the appellant filed an OSC Form 11 “Complaint of Possible Prohibited
Personnel Practice or Other Prohibited Activity” with OSC’s CEU regarding the
cessation of the HDP supplement, among other things.3 Id. at 8-19, Tab 21 at 33-
2 Members were also informed at that time that the agency would seek repayment of the
HDP overpayment dating back to 2011, although all debts that resulted from the HDP
overpayment were later waived. IAF, Tab 13 at 12-13 & n2.
3 The DU does not review allegations of prohibited personnel practices, and the Board
has held that making a disclosure to the Disclosure Unit does not satisfy the exhaustion
requirement under 5 U.S.C. § 1214(a)(3). Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 9 (2016); Mason v. Department of Homeland Security ,
116 M.S.P.R. 135, ¶ 16 (2011). After the appellant filed these complaints with OSC,
OSC reorganized its components such that the functions previously performed by the
CEU are now performed by the Investigation and Prosecution Division. 3
37. By a letter dated November 18, 2021, OSC informed the appellant that it did
not intend to seek corrective action on his behalf but that his complaint remained
open. IAF, Tab 14 at 158. The letter also informed the appellant that he had
exhausted his administrative remedies with OSC and provided him with notice of
his right to file an IRA appeal with the Board. Id.
¶4On December 3, 2021, the appellant filed the instant IRA appeal alleging
that the agency continuously denied him HDP in retaliation for his
whistleblowing disclosures and activities. IAF, Tab 1. The administrative judge
issued an IRA jurisdiction order that notified the appellant of his jurisdictional
burden and instructed him to submit evidence and argument establishing Board
jurisdiction over his appeal. IAF, Tab 6. After the appellant filed his
jurisdictional response, IAF, Tabs 12-14, the administrative judge issued a second
jurisdictional order noting that the appellant’s initial response was insufficiently
specific to allow her to make a jurisdictional determination, IAF, Tab 16. She
reopened the record on jurisdiction, instructed the appellant to identify specific
information for each of his protected disclosures or activities and retaliatory
personnel actions, and included a template for the appellant to provide the
information she required to make a jurisdictional determination. Id. at 1-3.
¶5After the appellant submitted a corrected supplemental jurisdictional
response4, IAF, Tabs 21-22, the administrative judge issued an initial decision
without holding the appellant’s requested hearing, dismissing the appeal for lack
of jurisdiction, IAF, Tab 24, Initial Decision (ID) at 1, 10. Specifically, the
administrative judge concluded that the appellant failed to nonfrivolously allege
that he made a protected disclosure under 5 U.S.C. § 2302(b)(8), id. at 6-10, and
that even if he nonfrivolously alleged that he engaged in protected activity under
5 U.S.C. § 2302(b)(9)(A) or (C) in connection with his complaints to the OIG and
Members of Congress, he nevertheless failed to nonfrivolously allege that he was
4 The administrative judge rejected the appellant’s initial supplemental jurisdictional
response for failure to comply with her instructions. IAF, Tab 20. 4
subjected to a covered personnel action under 5 U.S.C. § 2302(a) because the
only personnel action he was challenging—the discontinuation of the HDP
supplement—occurred in January 2015, before he engaged in any of the alleged
protected activities. ID at 10. In making this finding, she acknowledged but
rejected the appellant’s argument that each of the agency’s subsequent refusals to
reinstate HDP should have been considered separate personnel actions for the
purpose of establishing Board jurisdiction over his IRA appeal. ID at 10.
¶6The appellant timely filed a petition for review of the initial decision.
Petition for Review File (PFR), Tab 1. The agency filed a response in opposition
to the petition for review, and the appellant filed a reply. PFR File, Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7The appellant argues on review that the administrative judge erred by
rejecting his argument that he has been subjected to a “continuing retaliatory
personnel action, or more correctly, a series of continuing retaliatory personnel
actions” based on the agency’s discontinuation of his HDP supplement after
January 23, 2015. PFR File, Tab 1 at 6-9. He also argues that the administrative
judge erred by concluding that he failed to make protected disclosures under
5 U.S.C. § 2302(b)(8) in connection with his challenges to the agency’s HDP
discontinuation decision. Id. at 9-14. Finally, he argues that she erred by failing
to address his argument that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i) when he filed classification appeals with the Office of
Personnel Management (OPM) in 2017 and 2020 challenging the agency’s
decision to discontinue the HDP supplement. Id. at 18-19.
Applicable legal standard.
¶8The 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)5
(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). Edwards v. Department of Labor ,
2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967 (Fed. Cir. July 7, 2023); Salerno v.
Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
¶9A nonfrivolous allegation of a protected whistleblowing disclosure is an
allegation of fact that, if proven, would show that the appellant disclosed a matter
that a reasonable person in his position would believe evidenced one of the
categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno,
123 M.S.P.R. 230, ¶ 6. The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced a violation of any law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. Id.; see 5 U.S.C. § 2302(b)(8).
¶10An appellant must make specific and detailed allegations; vague,
conclusory, or unsupported allegations, such as one that essentially repeats the
legal standard, without more, are pro forma and insufficient to meet the
nonfrivolous standard. Clark v. U.S. Postal Service , 123 M.S.P.R. 466, ¶¶ 6, 8
(2016), aff’d per curiam , 679 F. App’x 1006 (Fed. Cir. 2017), and overruled on
other grounds by Cronin v. U.S. Postal Service , 2022 MSPB 13, ¶ 20 n.11. As
the U.S. Court of Appeals for the Federal Circuit held, “the question of whether
the appellant has non-frivolously alleged protected disclosures that contributed in
a personnel action must be determined based on whether the employee alleged
sufficient factual matter, accepted as true, to state a claim that is plausible on its
face.” Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369 (Fed.
Cir. 2020). In addition, “the Board may not deny jurisdiction by crediting the
agency’s interpretation of the evidence as to whether the alleged disclosures fell6
within the protected categories or whether the disclosures were a contributing
factor in an adverse personnel action.” Id. If an appellant establishes jurisdiction
over his IRA appeal, he is entitled to a hearing on the merits of his claim, which
he must prove by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5.
OSC Exhaustion.
¶11The substantive requirements of exhaustion are met when an appellant has
provided OSC with sufficient basis to pursue an investigation that might lead to
corrective action. Chambers v. Department of Homeland Security , 2022 MSPB 8,
¶ 10 (citations omitted). However, an appellant may give a more detailed account
of his whistleblowing activities before the Board than he did to OSC. Id.;
Skarada v. Department of Veterans Affairs , 2022 MSPB 17, ¶ 7. An appellant
may demonstrate exhaustion through his initial OSC complaint, evidence that he
amended the original complaint, including but not limited to OSC’s determination
letter and other letters from OSC referencing any amended allegations, and the
appellant’s written responses to OSC referencing the amended allegations.
Skarada, 2022 MSPB 17, ¶ 7. An appellant may also establish exhaustion
through other sufficiently reliable evidence, such as an affidavit or declaration
attesting that the appellant raised with OSC the substance of the facts in the
Board appeal. Chambers, 2022 MSPB 8, ¶ 11.
¶12The administrative judge determined that the appellant exhausted with OSC
his claim that he was subjected to a decision concerning pay or benefits under
5 U.S.C. § 2302(a)(2)(A)(ix) when the agency continuously refused to reinstate
the HDP supplement. Although she did not make specific findings concerning
which of the appellant’s alleged disclosures or activities he exhausted with OSC,
we agree that he has demonstrated exhaustion as to all 11 potential disclosures or
activities he identified in his supplemental response to her jurisdictional order.
IAF, Tab 21 at 9-39. 7
¶13Regarding the retaliatory personnel actions, the appellant alleged in his
OSC complaint that he was continuously denied HDP, Stand By Pay (SBP), and
Law Enforcement Assistance Pay (LEAP). IAF, Tab 2 at 13-18. However, in his
supplemental jurisdictional pleading, he acknowledged that he was not
challenging the denial of SBP and LEAP as a part of his IRA appeal. IAF, Tab 21
at 33 n.14. Additionally, he alleged that in retaliation for Disclosures 6, 8, 10,
and 11, the agency subjected him to an “illegal reassignment,” and referenced
5 U.S.C. § 2302(a)(2)(A)(iv), which identifies “a detail, transfer, or
reassignment” as a covered personnel action. IAF, Tab 21 at 21-39. Although the
appellant’s original OSC complaint does not reference his alleged retaliatory
reassignment, some of the documents the appellant states that he provided to OSC
do reference an alleged “reassignment” starting on April 24, 2015, following
changes made to his PD to remove the references to HDP. IAF, Tab 2 at 48-49,
103. Accordingly, we conclude that the appellant also exhausted this claim with
OSC.
¶14In sum, we modify the initial decision to clarify that the appellant exhausted
what has been identified as Disclosures 1 through 11 with OSC, as well as the
appellant’s claims that he was subjected to a reassignment under 5 U.S.C.
§ 2302(a)(2)(A)(iv), and a decision concerning pay or benefits under 5 U.S.C.
§ 2302(a)(2)(A)(ix) when his HDP supplement was discontinued.
We agree that the appellant failed to meet his jurisdictional burden because he
failed to nonfrivolously allege that any of his alleged disclosures or activities was
a contributing factor in the agency’s decision to take either of the challenged
personnel actions.
The January 24, 2015 discontinuation of the HDP supplement.
¶15As the record reflects that all of the appellant’s alleged protected
disclosures and activities postdate both of his alleged retaliatory personnel action,
that is, the discontinuation of HDP and the appellant’s “reassignment” based on
the issuance of a new PD following the rescission of HDP, we conclude that he8
failed to nonfrivolously allege that any of these disclosures or activities were a
contributing factor in these personnel actions. See El v. Department of
Commerce, 123 M.S.P.R. 76, ¶ 10 (2015) (explaining that because the subject
personnel action predated the disclosure, the disclosure could not have
contributed to the personnel action), aff’d per curiam , 663 F. App’x 921 (Fed.
Cir. 2016); Davis v. Department of Defense , 106 M.S.P.R. 560, ¶ 12 (2007)
(same), aff’d, 278 F. App’x 1009 (Fed. Cir. 2008).
¶16As previously noted, the appellant argues that the agency’s failure to
resume payment of HDP after January 23, 2015, gave rise to a separate retaliatory
personnel action “each and every payday” that he did not receive the HDP
supplement, and that therefore the administrative judge erred in finding he failed
to establish that his protected disclosures and activities were contributing factors
as to these subsequent events. PFR File, Tab 1 at 7. He argues, in other words,
that because each paycheck that did not include the HDP supplement was a part of
the agency’s “continuing reprisal,” each of the whistleblowing disclosures and
activities he exhausted with OSC preceded a subsequent denial of the HDP
supplement, and so he nonfrivolously alleged that he was subjected to personnel
actions in retaliation for his various disclosures and activities. Id. at 7-9.
¶17To support this argument, the appellant relies on decisions of the U.S. Court
of Claims discussing a “continuing claims” theory of liability. Id. at 8-9 (citing
Bevelheimer v. United States , 4 Cl. Ct. 558 (1984); Beebe v. United States ,
640 F.2d 1283 (Ct. Cl. 1981), disagreed with on other grounds by Bodie v. City of
Columbia, S.C., 934 F.2d 561, 565 (4th Cir. 1991); and Friedman v. United
States, 310 F.2d 381, 384 (Ct. Cl. 1962)). In Bevelheimer, 4 Cl. Ct. at 559-62,
the U.S. Court of Claims considered whether a group of employees who alleged
that they completed job duties that entitled them to HDP during the period from
1966 through 1977 were barred by the court’s statute of limitations from later
bringing suit against the Department of the Army on their claim that they should
have received the HDP differential for that time period. As a part of addressing9
this argument, the court considered defendants’ argument that under the relevant
statutory provision, “‘a separate cause of action accrued each payday’ when the
Army did not include in plaintiffs’ paychecks the hazardous duty pay they may
have earned in that pay period which they now seek.” Id. at 561. The court
ultimately agreed with the defendants that, for the purposes of that proceeding, a
separate cause of action against the Government accrued for the plaintiffs on each
day that the agency failed to include the HDP differential in the plaintiffs’
paychecks. Id.; see Beebe, 640 F.2d at 1292; Friedman, 310 F.2d at 384. As the
agency correctly observes on review, however, the matter the court was
addressing in Bevelheimer concerned whether a statute of limitations could apply
to bar suit for a prior claim of entitlement to HDP, and so the court’s embrace of
a “continuing claims” theory of liability in that case has no bearing on the
question posed in this case, i.e., whether, following an initial decision to
discontinue the HDP supplement, the withholding of the supplement from each
subsequent paycheck gives rise to separate covered personnel actions under
5 U.S.C. § 2302(a) for the purposes of an IRA appeal.
¶18Moreover, the Board has specifically considered and rejected such a
“continuing claims” theory of liability under similar circumstances. In Hamley v.
Department of the Interior , 122 M.S.P.R. 290 ¶ 3 (2015), the appellant filed an
IRA appeal alleging that the agency retaliated against him when it significantly
changed his work duties by not allowing him to assume the original duties of his
position at the end of his detail. OSC subsequently ordered the agency to return
the appellant to duty as corrective action, and the only issue before the Board was
the appellant’s entitlement to compensatory damages under the Whistleblower
Protection Enhancement Act of 2012 (WPEA). Id., ¶ 3. The challenged
personnel action was effected prior to the enactment of the WPEA, which altered
the availability of compensatory damages for such actions. Id., ¶¶ 3, 11.
Although the appellant acknowledged that he was not entitled to damages for the
period prior to the enactment of the WPEA, he argued that the significant change10
in his duties was “not a discrete act but rather a ‘continuing action’” because the
change to his duties continued after the enactment of the WPEA. Id., ¶ 3.
¶19The Board rejected the appellant’s “continuing action” theory of liability,
noting that although the theory could be applied to toll the statute of limitations
for certain Title VII claims, under the WPEA, unlike under Title VII, there is no
deadline for an appellant to file an administrative complaint that is associated
with the date of the alleged retaliatory act and so the theory was not applicable.
Id., ¶ 8. The Board further concluded that even if it were to recognize that the
principles underling a continuing violation theory of liability could be applied
under the WPEA, the appellant still would not prevail because the administrative
judge properly determined that the significant change in the appellant’s duties
was, in fact, a discrete act. Id. ¶ 10. Importantly, the Boad noted that the
appellant’s “continued performance of the changed duties” after the effective date
of the WPEA was merely “a consequence of the June 30, 2012 discrete act,” and
determined that “these consequences do not constitute separate acts of reprisal or
render the June 30, 2012 violation ‘continuing’ under the WPEA.” Id.
¶20As in Hamley, the single discrete act that constituted a covered personnel
action under 5 U.S.C. § 2302(a) in the instant case was the agency’s initial
decision on January 23, 2015, to suspend the payment of the HDP supplement to
Bomb Squad employees, effective January 24, 2015. IAF, Tab 2 at 103-04,
Tab 13 at 12 (acknowledging that the HDP premium payment was discontinued
effective January 24, 2015). The fact that the effects of that decision were
reflected in each subsequent paycheck thereafter is immaterial and does not
transform the agency’s single, discrete decision into a continuing personnel
action. Consequently, we find that, because all of the appellant’s alleged
protected disclosures and activities postdated the agency’s January 24, 2015
decision to discontinue the HDP supplement, the appellant failed to
nonfrivolously allege that any of his eleven disclosures was a contributing factor11
in the agency’s decision to discontinue payment of the HDP supplement5 IAF,
Tab 21 at 9-39; see El, 123 M.S.P.R. 76, ¶ 10; Davis, 106 M.S.P.R. 560, ¶ 12.
The April 24, 2015 “reassignment”
¶21As previously noted, the administrative judge did not address the
appellant’s claim that he was “reassigned” when he received a memorandum on or
around April 24, 2015, informing him that his PD had been updated to remove
references to the HDP. IAF, Tab 2 at 48-49, 103-04. A “reassignment” is defined
at 5 C.F.R. § 210.102(b)(12) as “a change of an employee, while serving
continuously within the same agency, from one position to another without
promotion or demotion.” See Onasch v. Department of Transportation ,
63 M.S.P.R. 158, 162 (1994). Here, it appears that the only result of the agency’s
April 24, 2015 action revising the appellant’s PD was to remove the references to
HDP. IAF, Tab 2 at 90-102 (appellant’s prior and updated PDs), 105 -116
(evaluation statement for appellant’s prior PD). As the appellant’s title, job
series, location, or duties were apparently not altered as a result of the reissuance
of the PD, it does not appear he was subjected to a covered “reassignment” as a
result of the PD change. Id. at 90-102.
¶22In any case, even assuming the appellant was subjected to a reassignment
for the purposes of 5 U.S.C. § 2302(a)(2)(A)(iv) based on the April 24, 2015
changes to his PD, the appellant alleged that the agency took this action in
retaliation for Disclosures 6, 8, 10, and 11, each of which postdated the agency’s
5 To the extent the appellant is arguing on review that his March 2020 OPM
classification appeal was a protected activity under 5 U.S.C. § 2302(b)(9), we find that,
even assuming the appeal did constitute a protected activity under this subsection, it
likewise postdated both challenged personnel actions by nearly 5 years, and that
therefore the appellant also failed to meet his jurisdictional burden with respect to this
claim. PFR File, Tab 1 at 18-19, IAF, Tab 21 at 44-45. Although the appellant
mentions another “statutory classification appeal” filed in 2017, this is a reference to an
internal request to the Director of PFPA for a desk audit of his position description filed
on April 10, 2017. IAF, Tab 13 at 17, 107-08, Tab 21 at 40-44. That alleged
disclosure, too, postdated both of the allegedly retaliatory personnel actions and thus
likewise could not have contributed to the agency’s decision to take either action.12
April 24, 2015 PD revisions. IAF, Tab 21 at 21-39. Thus, none of these
disclosures could have contributed to the agency’s decision to take the challenged
action. See El, 123 M.S.P.R. 76, ¶ 10; Davis, 106 M.S.P.R. 560, ¶ 12.
Accordingly, we further modify the initial decision to clarify that although the
appellant exhausted with OSC his claim that he was subjected to a reassignment
in retaliation for his various protected disclosures and activities, he nevertheless
failed to nonfrivolously allege that any of these disclosures or activities
contributed to the agency’s decision to take that action, and that therefore he also
failed to meet his jurisdictional burden as to that claim.6
¶23For the foregoing reasons, we deny the appellant’s petition for review and
affirm the initial decision dismissing the appellant’s IRA appeal for lack of
jurisdiction, as modified herein to clarify the basis for the jurisdictional
determination.
NOTICE OF APPEAL RIGHTS7
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
6 Because we have concluded that all of the appellant’s alleged disclosures and
activities postdated all of the alleged retaliatory personnel actions, we need not address
the administrative judge’s alternative finding that the appellant failed to nonfrivolously
allege that he made a protected disclosure under 5 U.S.C. § 2302(b)(8) in connection
with his claims. ID at 6-10.
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.13
this 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. The14
Board neither endorses the 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.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. 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 | Coleman_Richard_W_DC-1221-22-0109-W-1_Final_Order.pdf | 2024-08-14 | RICHARD W. COLEMAN JR. v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-22-0109-W-1, August 14, 2024 | DC-1221-22-0109-W-1 | NP |
704 | https://www.mspb.gov/decisions/nonprecedential/Young_Teresa_M_DC-1221-21-0296-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERESA M. YOUNG,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-1221-21-0296-W-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Teresa M. Young , Frederick, Maryland, pro se.
Steven Weiss , Esquire, Bethesda, 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
granted the agency’s motion to dismiss her individual right of action appeal
without prejudice to refiling. She argues that the agency filed its motion to
prevent litigation of her appeal and that the administrative judge’s decision to
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant the agency’s motion shortly after it was filed evidences bias. She asserts
the administrative judge made procedural and legal errors in granting the
agency’s motion. She also reasserts the merits of her claims. The agency has not
responded to the petition for review. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
We are not persuaded by the appellant’s argument that the administrative
judge’s actions evidenced bias against the appellant. Petition for Review (PFR)
File, Tab 1 at 3-4. There is a presumption of honesty and integrity on the part of
administrative judges that can only be overcome by a substantial showing of
personal bias, and the Board will not infer bias based on an administrative judge’s
case-related rulings. Vaughn v. Department of the Treasury , 119 M.S.P.R. 605,
¶ 18 (2013). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if her comments or actions evidence
“a deep-seated 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)). 2
Here, the appellant identifies no specific comments or actions by the
administrative judge that indicate favoritism or antagonism. PFR File, Tab 1
at 3-4; see Vaughn, 119 M.S.P.R. 605, ¶ 19 (declining to find bias when an
appellant identified no specific improper comments or actions by an
administrative judge indicating favoritism or antagonism). Instead, her claim of
bias appears to rest on the administrative judge’s decision to grant the agency’s
motion and the fact that she did so swiftly. PFR File, Tab 1 at 3-4. We discern
nothing improper in the administrative judge’s quick resolution of this matter.
She provided the appellant with notice of her intention to dismiss the appeal
without prejudice and of the legal basis for doing so. Initial Appeal File (IAF),
Tab 8. She gave the appellant 6 days to respond, which the appellant did. IAF,
Tabs 8-9. The administrative judge’s subsequent decision to grant the agency’s
motion is a case-related ruling that does not evidence bias.
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.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.
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 | Young_Teresa_M_DC-1221-21-0296-W-1_Final_Order.pdf | 2024-08-13 | TERESA M. YOUNG v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-1221-21-0296-W-1, August 13, 2024 | DC-1221-21-0296-W-1 | NP |
705 | https://www.mspb.gov/decisions/nonprecedential/Halterman_RickSF-1221-23-0231-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RICK HALTERMAN,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
SF-1221-23-0231-W-1
DATE: August 13, 2024
THIS ORDER IS NONPRECEDENTIAL1
Renee S. Moore , Esquire, Rochester, New York, for the appellant.
Micah Yang , Esquire, San Diego, 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.
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 discussed below, we GRANT the appellant’s petition for review,
REVERSE the initial decision’s finding that the appellant did not administratively
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
exhaust his alleged May 2022 disclosure, FIND that the appellant nonfrivolously
alleged that his May 2022 disclosure was protected and a contributing factor in
two of the personnel actions at issue, AFFIRM the remainder of the initial
decision, and REMAND the case to the Western Regional Office for further
adjudication in accordance with this Remand Order .
BACKGROUND
¶2In November 2022, the appellant, a Deportation Officer, filed a
whistleblower reprisal complaint with the Office of Special Counsel (OSC).
Initial Appeal File (IAF), Tab 1 at 7, Tab 9 at 7, 20-36. OSC issued the appellant
a close-out letter, and the appellant timely filed an IRA appeal with the Board.
IAF, Tab 1. In response to the administrative judge’s order to submit evidence
and argument regarding the Board’s jurisdiction, the appellant alleged that the
agency retaliated against him for two protected disclosures he made in May and
July 2022, respectively, as well as a grievance he filed in June 2022 through six
personnel actions, specifically: (1) the May 2022 discontinuation of his Health
Improvement Program (HIP) privileges; (2) the July 2022 suspension of his law
enforcement authorities and assignment to administrative duties; (3) his July 2022
decertification from certain overtime privileges; (4) the July 2022 notice of
proposed removal based on his alleged misconduct; (5) the October 2022
mitigation of his proposed removal to a 14-day suspension; and (6) his Fiscal
Year (FY) 2022 performance appraisal. IAF, Tab 3, Tab 9 at 4-18.
¶3The administrative judge dismissed the appeal for lack of jurisdiction
without holding a hearing. Initial Appeal File (IAF), Tab 12, Initial Decision
(ID). The administrative judge found that the appellant did not exhaust
administrative remedies for the alleged May and July 2022 disclosures, but that
he did exhaust administrative remedies for the June 2022 grievance and all six
personnel actions. ID at 5-7. The administrative judge then found that, because
the June 2022 grievance did not seek to remedy whistleblower reprisal, the2
alleged reprisal for the grievance fell in the category of prohibited personnel
practices under 5 U.S.C. § 2302(b)(9)(A)(ii) over which the Board lacked IRA
jurisdiction under 5 U.S.C. § 1221(a). ID at 7-8 (citing McCray v. Department of
the Army, 2023 MSPB 10, ¶ 12). The administrative judge found the appellant’s
argument that the grievance amounted to a protected disclosure unavailing, on the
ground that disclosures made in the course of exercising grievance rights could
only receive protection under 5 U.S.C. § 2302(b)(9), and not under 5 U.S.C.
§ 2302(b)(8). ID at 8 (citing McCray, 2023 MSPB 10, ¶ 18).
¶4The appellant filed a petition for review in which he challenges the
administrative judge’s adverse exhaustion findings. Petition for Review (PFR)
File, Tab 1. The agency filed a response. Id., Tab 3.
ANALYSIS
The appellant exhausted administrative remedies for his alleged May 2022
disclosure.
¶5An appellant in an IRA appeal must exhaust administrative remedies by
seeking corrective action from OSC before seeking corrective action from the
Board. Chambers v. Department of Homeland Security , 2022 MSPB 8, ¶ 10. The
substantive requirements of exhaustion are met when an appellant has provided
OSC with sufficient basis to pursue an investigation. Id. The purpose of
requiring an appellant to exhaust his remedies with OSC before filing an IRA
appeal with the Board is to give OSC the opportunity to take corrective action
before involving the Board in the case. Id. Thus, the Board’s jurisdiction over an
IRA appeal is limited to those issues that have been previously raised with OSC.
Id.
¶6The administrative judge found that the appellant did not exhaust
administrative remedies regarding the May 2022 disclosure because his OSC
complaint identified the date of his whistleblowing exclusively as June 30, 2022,
while his vague reference to earlier conversations did not sufficiently notify OSC3
of the May 2022 disclosure. ID at 5-6. We disagree with the administrative
judge’s conclusion, which overlooked the portion of the appellant’s OSC
complaint that raised his alleged May 2022 disclosure. In his OSC complaint, the
appellant asserted that he emailed a grievance on June 30, 2022, to an Assistant
Field Office Director (AFOD) alleging a collective bargaining agreement
violation in the management of Deportation Officers’ workloads. IAF, Tab 1
at 88, Tab 9 at 25-26, 28-29. The appellant also alleged in his OSC complaint
that he disclosed during a verbal conversation with a Supervisory Detention and
Deportation Officer (SDDO) that, among other things, he and other Deportation
Officers were not properly screening cases, and his management’s reports based
on expired “call-ups” were based on false information. IAF, Tab 9 at 29.
Although the appellant did not explain to OSC, as he did during the Board appeal,
that this conversation occurred in the beginning of May 2022, id. at 10, the
complaint provided OSC with a sufficient basis to investigate the alleged
conversation as separate and distinct whistleblowing from the appellant’s
June 30, 2022 emailed grievance. The appellant’s failure to provide the date of
the conversation in his OSC complaint was immaterial under these circumstances,
as an appellant may give a more detailed account of his whistleblowing activities
before the Board than he did to OSC. Chambers, 2022 MSPB 8, ¶ 10. We thus
find that the appellant exhausted administrative remedies for his alleged May
2022 disclosure.2
2 On review, the appellant, who was represented throughout his Board appeal, submits
an amicus brief filed in a different case, which he did not submit below, to support his
argument that the administrative judge failed to consider that he was pro se when he
filed his OSC complaint in analyzing exhaustion. PFR File, Tab 1 at 10-11, 19-48.
Because the appellant does not show this new evidence was previously unavailable
despite due diligence, we need not consider it or the arguments therein. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016); Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 213-14 (1980). Nevertheless, for the above reasons, we find the
exhaustion requirement satisfied for the appellant’s claimed May 2022 disclosure, even
without giving his pro se status special consideration.4
¶7We agree with the administrative judge, however, that the appellant did not
exhaust his administrative remedies for his claimed July 2022 disclosure. Even
reading the appellant’s OSC complaint broadly, we agree with the administrative
judge that the complaint neither claimed nor suggested that the appellant—who
knew how to inform OSC of protected disclosures he made or activities he
engaged in, IAF, Tab 9 at 25-26, 28-29—made a protected disclosure in July
2022. ID at 6.
The appellant nonfrivolously alleged that his May 2022 disclosure was protected
under 5 U.S.C. § 2302(b)(8) .
¶8If an appellant has exhausted his administrative remedies before OSC, he
can establish Board jurisdiction over an IRA appeal by nonfrivolously alleging
that: (1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined
by 5 U.S.C. § 2302(a)(2)(A). Chambers, 2022 MSPB 8, ¶ 14. A nonfrivolous
allegation of a protected whistleblowing disclosure is an allegation of fact that, if
proven, would show that the appellant disclosed a matter that a reasonable person
in his position would believe evidenced one of the categories of wrongdoing
specified in 5 U.S.C. § 2302(b)(8). Skarada v. Department of Veterans Affairs ,
2022 MSPB 17, ¶ 12.
¶9The appellant explained below that he reasonably believed his alleged May
2022 disclosure evidenced, among other things, a violation of policy regarding
the reporting of case-vetting and expired “call-ups,” i.e., events in immigration
removal proceedings which did not occur by their statutory deadlines. IAF, Tab 9
at 10-12. The appellant further explained that management’s reports of expired
call-ups, which were based on data falsified by officers, disguised the statuses of
removal subjects. Id. at 12. Based on these assertions, we find that a reasonable
person in the appellant’s position would have believed his alleged May 20225
disclosure evidenced, at minimum, a violation of law, rule, or regulation. See
Johns v. Department of Veterans Affairs, 95 M.S.P.R. 106, ¶¶ 9-10
(2003) (finding that an allegation that employees made false statements to Federal
agencies regarding firearms qualification scores nonfrivolously alleged a
disclosure of a violation of law, rule, or regulation). We thus find that the
appellant nonfrivolously alleged that he made a disclosure protected under
5 U.S.C. § 2302(b)(8).
The appellant nonfrivolously alleged that his May 2022 disclosure was a
contributing factor in the agency’s decision to take a personnel action.
¶10To 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. Chambers, 2022 MSPB 8, ¶ 14. One way to
establish this criterion is the knowledge/timing test, under which an employee
may nonfrivolously allege that the disclosure or activity was a contributing factor
in a personnel action through circumstantial evidence, such as evidence that the
official taking the personnel action knew of the disclosure or activity, and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure or activity was a contributing factor in the
personnel action. Id., ¶ 15.
¶11One of the actions which the appellant alleged constituted whistleblower
reprisal was the discontinuation of his HIP privileges. IAF, Tab 9 at 16.
According to local agency policy, various employees, including Deportation
Officers, were permitted under the HIP to use up to three duty hours per week for
physical exercise. IAF, Tab 11 at 580-83. With his response to the jurisdictional
order, the appellant attached a May 11, 2022 email from the SDDO to whom he
claimed to have made the early May 2022 disclosure informing him that, “[a]s
discussed during [their] meeting,” his HIP privileges were being discontinued to6
provide him more time to address the high number of expired call-ups on his
docket. IAF, Tab 9 at 40.
¶12We find that the appellant nonfrivolusly alleged that the discontinuation of
his HIP privileges, which the agency granted to Deportation Officers and other
employees in the appellant’s location based on a general practice, qualified as a
personnel action as a “decision concerning . . . benefits” under 5 U.S.C. § 2302(a)
(2)(A)(ix). See Arauz v. Department of Justice , 89 M.S.P.R. 529, ¶¶ 18-19 (2001)
(finding that a showing that an agency denied a request for administrative leave in
circumstances in which it had a general practice of granting such leave
establishes the denial of a benefit under 5 U.S.C. § 2302(a)(2)(A)(ix)). Further,
the SDDO was alleged to have known of the appellant’s early May 2022
disclosure as its purported recipient and to have discontinued the appellant’s HIP
privileges less than 10 days later, while the SDDO’s email indicates that he
possibly discontinued the appellant’s HIP privileges in response to the appellant’s
disclosure. IAF, Tab 9 at 16, 40. The appellant thus nonfrivolously alleged that
his May 2022 disclosure was a contributing factor in the discontinuation of his
HIP privileges through both the knowledge/timing test and objective evidence.
See Cooper v. Department of Veterans Affairs , 2023 MSPB 24, ¶ 20 (stating that
personnel actions alleged to have begun within 1 to 2 years of an appellant’s
protected disclosures satisfy the timing prong of the knowledge/timing test).
¶13We find that the appellant did not, however, nonfrivolously allege that his
May 2022 disclosure was a contributing factor in the remaining personnel actions
through the knowledge/timing test. None of those other actions was taken by the
SDDO to whom the appellant made the disclosure, and apart from conclusory
assertions that the remaining personnel actions constituted whistleblower reprisal
based on their timing, the appellant did not allege that the individuals responsible
for those actions actually knew of his alleged May 2022 disclosure. IAF, Tab 9 at
13-18, 29. 7
¶14If an appellant fails to satisfy the knowledge/timing test, the Board must
consider other evidence, such as that pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action, whether the whistleblowing was
personally directed at the proposing or deciding official, and whether those
individuals had a desire or motive to retaliate against the appellant. Chambers,
2022 MSPB 8, ¶ 15; Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15
(2012). The appellant claimed that a second SDDO retaliated against him through
his performance appraisal based on the issue of expired call -ups—the subject of
his alleged May 2022 disclosure. IAF, Tab 9 at 10, 13 -14. The appellant’s FY
2022 performance appraisal contained a September 2022 note from this other
SDDO stating that the appellant “needs improvement on timeliness of clearing out
case call-ups,” while asserting that the appellant needed “moderate supervisory
oversight” due to this deficiency. IAF, Tab 11 at 83. The appellant was rated
“fully successful” in the custody operations performance element based on these
and other assessments. Id. at 82-83. From the available record, except for this
one instance, the appellant had only received “outstanding” or “excellent” ratings
on his individual performance elements, including on the custody operations
element in previous years. Id. at 81-94, 150-92. Further, the appellant claimed
that the rating SDDO was among those responsible for the reporting of false call-
up numbers, which could evidence retaliatory motive if proven. IAF, Tab 9 at 13.
On this record, we find that the appellant non-frivolously alleged that his May
2022 disclosure was a contributing factor in his FY 2022 performance appraisal, a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(viii).
¶15The appellant did not, however, nonfrivolously allege that his May 2022
disclosure was a contributing factor in the remaining personnel actions, even
considering the factors set forth in Dorney. Those personnel actions—the July
2022 suspension of his law enforcement authorities and assignment to
administrative duties, the July 2022 decertification of his administratively
uncontrollable overtime privileges, the July 2022 notice of proposed removal, and8
the October 2022 14-day suspension—stemmed from allegations that he showed a
co-worker a video of a sexual nature on his cellphone at a retirement party, then
lacked candor when questioned about his actions during the resulting
investigation. IAF, Tab 1 at 82-85, Tab 9 at 6-7, 37 -38, Tab 11 at 37-39, 131-34,
385-86. The record indicates that the agency’s reasons for taking the personnel
actions were strong. See Dorney, 117 M.S.P.R. 480, ¶ 15 (stating that evidence
pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action is relevant in determining the contributing factor criterion).
Even accepting as true, as we must at this stage, the appellant’s argument that the
co-worker’s report was not credible, the appellant’s own admissions to possessing
intimate videos on his phone, as well as other evidence the appellant either filed
himself or did not contest below, tends to confirm his misconduct. IAF, Tab 1 at
57-59, 63-65, Tab 9 at 17, Tab 11 at 116-17, 224, 278. Although the deciding
official did not sustain either specification of the lack of candor charge, the
evidence supporting the charge—which the appellant also either filed himself or
did not contest below—was still strong. IAF, Tab 1 at 19-21, 41-43, 83, Tab 11
at 131, 305. Further, the investigation into the appellant’s misconduct leading to
the personnel actions, which concluded in May 2022, began well before the
appellant’s May 2022 disclosure.3 IAF, Tab 11 at 262-70.
3 We recognize the warning of the U.S. Court of Appeals for the Federal Circuit in
Hessami v. Merit Systems Protection Board , 979 F.3d 1362, 1369 (Fed. Cir. 2020that
jurisdiction over a whistleblower reprisal appeal must be determined based on whether
an appellant alleged sufficient factual matter, accepted as true, to state a claim that is
plausible on its face, and that the Board may not deny jurisdiction by crediting the
agency’s interpretation of the evidence. Here, we are careful to only consider the
agency’s documentary submissions to the extent they do not contradict the allegations
the appellant offers in support of jurisdiction. See Ferdon v. U.S. Postal Service ,
60 M.S.P.R. 325, 329 (1994) (stating that the Board may consider an agency’s
documentary submissions in determining whether an appellant has made a nonfrivolous
allegation of jurisdiction, but to the extent the agency’s evidence constitutes mere
factual contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the Board may not weigh evidence and resolve conflicting assertions of the
parties and the agency’s evidence may not be dispositive).9
¶16Finally, the appellant’s description of his May 2022 disclosure did not
allege wrongdoing by any specific person, and the officials the appellant claimed
were involved in the wrongdoing evidenced by his disclosure did not include the
officials responsible for the remaining personnel actions.4 IAF, Tab 9 at 10, 13.
The appellant thus did not nonfrivolously allege contributing factor for the
remaining personnel actions through retaliatory motive or any other evidence
upon which contributing factor may be shown.
The appellant established jurisdiction over his appeal, which we remand for
adjudication on the merits.
¶17For these reasons, we find that the appellant established jurisdiction over
his appeal and we remand it for further adjudication. On remand, the
administrative judge shall hold the appellant’s requested hearing. IAF, Tab 1
at 2. He shall then determine whether the appellant met his burden of proving by
preponderant evidence that he made his claimed May 2022 disclosure—the only
alleged whistleblowing remaining at issue—and that it was protected under
5 U.S.C. § 2302(b)(8). If the administrative judge finds that the appellant made a
protected disclosure, he shall decide whether the appellant established that the
disclosure was a contributing factor in a personnel action, with the May 2022
discontinuation of his HIP privileges and his FY 2022 performance appraisal
being the only nonfrivolously alleged personnel actions within the Board’s
jurisdiction. If the appellant establishes by preponderant evidence that he made a
4 The appellant alleged that the individuals who served him with, or conveyed to him
the contents of, the July 2022 memorandum that suspended his law enforcement
authorities, placed him on administrative duties, and effectively disallowed him from
working overtime—the AFOD and the rating SDDO for his FY 2022 performance
appraisal—were responsible for the false call-up reports he disclosed. IAF, Tab 9
at 6-7, 13. But the record shows that the officials involved in the decision to take the
personnel actions effected by the July 2022 memorandum were different officials whom
the appellant neither identified in his claimed disclosure nor alleged to have any
retaliatory motive against him. IAF, Tab 11 at 37-38, 385-86. The evidence we
consider here is entirely consistent with the July 2022 memorandum—which the
appellant filed into the record and which identifies its issuing official—being served on
or communicated to him by his immediate supervisors, as he asserts. IAF, Tab 9 at 13,
37-38.10
protected disclosure that was a contributing factor in a personnel action, then the
administrative judge shall determine whether the agency established by clear and
convincing evidence that it would have taken the personnel action in the absence
of the disclosure.
ORDER
¶18For the reasons discussed above, we remand this case to the Western
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Halterman_RickSF-1221-23-0231-W-1_Remand_Order.pdf | 2024-08-13 | RICK HALTERMAN v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. SF-1221-23-0231-W-1, August 13, 2024 | SF-1221-23-0231-W-1 | NP |
706 | https://www.mspb.gov/decisions/nonprecedential/Vice_KartariiDC-531D-21-0073-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KARTARII VICE,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
DC-531D-21-0073-I-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kartarii Vice , La Plata, Maryland, pro se.
Nnenne U. Agbai , 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 her appeal of her within-grade increase (WIGI) denial 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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 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, who is employed by the agency as a GS-11 Staff Assistant,
received a memorandum on February 24, 2020, informing her of the decision to
withhold her WIGI based on a failure to demonstrate an acceptable level of
competence during the Fiscal Year 2019 (FY19) rating period. Initial Appeal File
(IAF), Tab 1 at 8-10. On November 5, 2020, the appellant filed an appeal of her
WIGI denial alleging that, amongst other things, the agency retaliated against her
for protected whistleblowing activity and committed other prohibited personnel
practices. Id. at 3, 5. The administrative judge informed the appellant that the
Board may not have jurisdiction over her WIGI denial and ordered her to submit
evidence and argument to establish why the appeal should not be dismissed for
lack of jurisdiction or as untimely. IAF, Tab 3.
In response to the order, the appellant argued that the agency should have
provided her with an opportunity to avoid the alleged performance deficiencies
that led to her WIGI denial, questioned its assessment of her performance, and
asserted that she was unable to timely request reconsideration of her WIGI denial
due to the need to care for her ill grandson and her own “emergency medical2
leave.” IAF, Tab 5 at 4. She submitted several documents, including leave
records, a doctor’s note for the care of her grandchild, and emails with agency
human resources staff and her supervisor regarding her WIGI. Id. at 5-8, 10-14.
She also expressed disagreement with her FY19 performance rating and the
manner in which it was issued. IAF, Tab 9 at 4-6. The agency filed a response to
the order arguing that the Board lacks jurisdiction over the appellant’s WIGI
denial and requesting dismissal. IAF, Tab 7 at 4-9.
In an initial decision, the administrative judge found that it was undisputed
the appellant failed to request or receive a reconsideration decision as necessary
to establish jurisdiction over her WIGI denial under 5 U.S.C. § 5335(c). IAF,
Tab 13, Initial Decision (ID) at 3-5 (citing 5 C.F.R. § 531.410, an Office of
Personnel Management (OPM) regulation establishing procedures under 5 U.S.C.
§ 5335(c)). She also found the appellant did not claim she exhausted her
administrative remedies before the Office of Special Counsel (OSC) as necessary
to establish Board jurisdiction over an individual right of action (IRA) appeal. ID
at 5-6. Finally, the administrative judge determined that the Board lacks
jurisdiction to review the appellant’s other prohibited personnel practice and
harmful error claims in the absence of an otherwise appealable action. ID at 6.
As a result, she dismissed the appeal for lack of jurisdiction without holding the
appellant’s requested hearing. IAF, Tab 1 at 2; ID at 1, 6-7.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the appellant’s petition.
PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant does not dispute the administrative judge’s
determination that she did not seek to exhaust her OSC remedy as to any potential
IRA appeal. ID at 6. We discern no basis to disturb the administrative judge’s
well-reasoned determination that the Board therefore lacks jurisdiction over the3
appellant’s claim as an IRA appeal. See Salerno v. Department of the Interior ,
123 M.S.P.R. 230, ¶ 5 (2016) (listing the prerequisites for Board jurisdiction over
an IRA appeal, including OSC exhaustion).
The appellant asserts for the first time on review that she requested
reconsideration when she disputed her performance rating in October 2019.
PFR File, Tab 1 at 4; IAF, Tab 9 at 5. We interpret this claim as an argument that
the Board has jurisdiction over her WIGI denial under 5 U.S.C. § 5335(c).
PFR File, Tab 1 at 4. The Board’s jurisdiction is limited to those matters over
which it has been given jurisdiction by law, rule or regulation. Maddox v. Merit
Systems Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). An employee under
the General Schedule earns periodic increases in pay, or WIGIs, as long as her
performance is at an acceptable level of competence. Brookins v. Department of
the Interior, 2023 M.S.P.B. 3, ¶ 6; see 5 U.S.C. § 5335(a). When an agency
determines that an employee is not performing at an acceptable level of
competence and that a WIGI should be withheld, the employee is entitled to
“prompt written notice of that determination” and an opportunity for
reconsideration under regulations prescribed by OPM. 5 U.S.C. § 5335(a)
(B), (c). OPM’s regulations provide that an employee must seek reconsideration
of a decision to withhold a WIGI in writing within 15 days of receiving the
decision from the agency. 5 C.F.R. § 531.410(a)(1). The Board can exercise
jurisdiction over an appeal from the withholding of a WIGI only if the agency has
affirmed its initial decision on reconsideration or has unreasonably refused to act
on a request for reconsideration. 5 U.S.C. § 5335(c); Priselac v. Department of
the Navy, 77 M.S.P.R. 332, 335 (1998). The administrative judge found that the
Board lacked jurisdiction because the appellant failed to nonfrivolously allege
that she requested, or that the agency issued, a reconsideration decision. ID at 1,
3-5. We agree.
On review, the appellant argues that before she received notice of her WIGI
denial of February 2020, “[she] did in fact submit an email to [the agency]4
requesting reasonable reconsideration and [the agency] denied that reasonable
reconsideration.”2 PFR File, Tab 1 at 4. In support of her claim, she refers to an
alleged October 2019 email exchange with her supervisor, in which she disputed
her performance rating, and he stated that his “rating stands.” Id.; IAF, Tab 9
at 5. Because this alleged request predated and was not directed at her WIGI
denial, it was not a request for reconsideration from that denial.
The appellant also claims she sought guidance regarding requesting
reconsideration. PFR File, Tab 1 at 4. She points to the emails that she
submitted below in response to the show cause order to support this argument.
Id.; IAF Tab 5 at 11-14. In the appellant’s emails, she notified the agency’s
Office of Human Resources that she did not receive her WIGI and requested
guidance on the process to receive it. IAF, Tab 5 at 11-14. She also asked her
supervisor if he was “aware that this ‘minimally satisfactory rating’ [he] gave
denies [her a] WIGI?” Id. at 12-13. We have given careful consideration to the
emails to evaluate whether they could constitute a request for reconsideration.
Based on their content and the fact that they are dated January to February 2020,
before the appellant received her WIGI denial, we find that they do not.
In Jack v. Department of Commerce , 98 M.S.P.R. 354, ¶¶ 2-4, 11 (2005),
after the agency effected and the appellant learned of the agency’s denial of his
WIGI, but before the agency issued him written notice of its decision, the
appellant “formally request[ed]” in writing that the agency’s decision to deny the
WIGI be reversed and that his step increase be retroactively granted. The agency
failed to act on his written request. Id., ¶ 3. The Board concluded that it had
jurisdiction. Id., ¶ 13. As relevant here, it determined that the agency’s failure to
2 Although the agency dated its WIGI denial on February 21, 2020, it appears likely the
appellant received it on February 24, 2020. IAF, Tab 1 at 8, 10. The notice states that
the appellant refused to sign on that date. Id. at 10. In any event, because we agree
with the administrative judge that the appellant never requested reconsideration either
within or after the 15 day period for doing so, we need not determine whether the
appellant received written notice of her WIGI denial on February 21, 2020, or 3 days
later. ID at 3-5 & n.2.5
provide the appellant with prompt written notice of its decision until months after
it made its decision could not defeat jurisdiction and its failure to act on his
earlier request was unreasonable. Id., ¶¶ 10-13.
Here, the appellant has failed to nonfrivolously allege that she ever
requested reconsideration. Although the emails reflect that she was seeking
information regarding the process to receive her WIGI, the emails do not contain
any language that could be construed to be a request for reconsideration of the
WIGI denial. IAF, Tab 5 at 11-14. Further, unlike Jack, the agency issued a
prompt written notice of the appellant’s WIGI denial. Specifically, her WIGI was
due on February 2, 2020, and the agency informed her of its denial in the
February 21, 2020 memorandum, which she received on February 24, 2020. IAF,
Tab 1, at 8-10, Tab 5 at 14. Moreover, the appellant conceded that “there wasn’t
anything filed within the required time frame [because her] grandson having
cancer [sic] and [she] went to Arizona where he was living.” IAF, Tab 5 at 4.
Therefore, we decline to disturb the administrative judge’s finding that she failed
to request a reconsideration decision after she received the notice of her WIGI
denial. ID at 3, 5 & n.2.
To the extent that the appellant asserts on review that the evidence she
submitted below supports her inability to timely request reconsideration, thus
justifying extending the timeline, we agree with the administrative judge that her
argument is unavailing.3 PFR File, Tab 1 at 5; ID at 4. She alleged below that
her grandchild’s illness and related leave prevented her from timely requesting
3 The appellant also appears to argue that she has good cause for untimely filing her
Board appeal and asserts that she was on emergency leave for a portion of the filing
period. PFR File, Tab 1 at 5. Her argument on review appears inconsistent with her
statement below that she returned from emergency leave in January 2020, which was
prior to her WIGI denial. IAF, Tab 5 at 4. We need not resolve this discrepancy. We
affirm the administrative judge’s determination that because the Board lacks
jurisdiction to review this case, we need not reach the appellant’s arguments on review
regarding the timeliness of her appeal. ID at 2 n.1; see Alston v. Social Security
Administration, 95 M.S.P.R. 252, ¶ 19 (2003), aff’d per curiam, 134 F. App’x 440 (Fed.
Cir. 2005).6
reconsideration. IAF, Tab 5 at 4. When an agency denies a request for
reconsideration of the withholding of a WIGI because it was not submitted by the
regulatory deadline, the Board will review the record that was before the agency
to determine whether the denial was unreasonable or an abuse of discretion.
Priselac, 77 M.S.P.R. at 336. If the Board finds that the appellant did not present
sufficient evidence to justify extending the deadline, the Board lacks jurisdiction
over the appeal. Id. at 336-37; 5 C.F.R. § 531.410(b) (“The time limit to request
a reconsideration may be extended when the employee shows he or she . . . was
prevented by circumstances beyond his or her control from requesting
reconsideration within the time limit.”). Here, as the administrative judge
correctly determined, the appellant did not request reconsideration. ID at 3,
5 & n.2. The administrative judge alternatively found that the evidence the
appellant submitted predated her WIGI denial and did not address the 15 days
during which she was required to request reconsideration. IAF, Tab 5 at 5-10; ID
at 4. Thus, the administrative judge properly found that she failed to show how
she was prevented from circumstances beyond her control from requesting
reconsideration within the regulatory time limit. ID at 4.
The appellant’s remaining arguments provide no basis to grant review. She
asserts that the agency engaged in prohibited personnel practices and abused its
authority by failing to comply with Federal Government policies regarding
negative performance-based actions. PFR File, Tab 1 at 4. The administrative
judge properly determined that, because the Board lacks jurisdiction over the
appellant’s WIGI denial, it cannot consider her claims of prohibited personnel
practices. ID at 6; 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);
Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980) (explaining that
prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982). She7
further argues that the agency did not serve her with copies of the documents at
Tabs 1 through 4 of the Initial Appeal File relied on by the administrative judge
in the initial decision. PFR File, Tab 1 at 5. However, Tabs 1-4 are pleadings
submitted by the appellant and orders issued by the administrative judge. Thus,
the agency was not obligated to serve copies on the appellant. See 5 C.F.R.
§ 1201.26(b)(2) (requiring parties to serve each other with copies of their
pleadings). Further, the appellant was an e-filer and thus deemed to have
received the agency’s pleadings on the date of electronic submission. 5 C.F.R.
§ 1201.14(m)(2).
Accordingly, we affirm the dismissal of the appellant’s WIGI appeal for
lack of jurisdiction.
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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain9
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 10
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 11
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Vice_KartariiDC-531D-21-0073-I-1_Final_Order.pdf | 2024-08-13 | KARTARII VICE v. DEPARTMENT OF LABOR, MSPB Docket No. DC-531D-21-0073-I-1, August 13, 2024 | DC-531D-21-0073-I-1 | NP |
707 | https://www.mspb.gov/decisions/nonprecedential/Foster_D._Madison_P_PH-315H-23-0098-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
D. MADISON PAIGE FOSTER,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
PH-315H-23-0098-I-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bruce Wayne Hawkins , Newmarket, New Hampshire, for the appellant.
Scott W. Flood , Esquire, Portsmouth, New Hampshire, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of her probationary termination for lack of jurisdiction. On
petition for review, the appellant states that she was unable to file a jurisdictional
response because she could not access the Board’s e-Appeal Online website over
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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 course of several days and asserts that she was only provided with 2 days to
respond to the agency’s motion to dismiss the appeal for lack of jurisdiction.
However, she does not challenge the administrative judge’s finding that the Board
lacks jurisdiction over her probationary termination 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.
Regarding the appellant’s assertion that she was only provided with 2 days
to submit a response to the agency’s motion to dismiss the appeal, this fact does
not warrant a different outcome. Petition for Review File, Tab 1 at 3. The
agency filed its jurisdictional response and also moved to dismiss the appeal for
lack of jurisdiction based on the appellant’s undisputed probationary status within
the timeline set for its jurisdictional response. Initial Appeal File (IAF), Tab 2
at 5; Tab 5. Although the administrative judge issued the initial decision 4 days
before the record on jurisdiction was set to close, the appellant’s deadline to
submit a jurisdictional response had expired at that time. IAF, Tab 2 at 5, Tab 6,
Initial Decision at 1. Even assuming that the administrative judge erred by
closing the record 4 days early, that error is not a reason for granting the
appellant’s petition for review because it did not prejudice her substantive rights.
See Karapinka v. Department of Energy , 6 M.S.P.R. 124, 127 (1981) (holding2
that the administrative judge’s procedural error is of no legal consequence unless
it is shown to have adversely affected a party’s substantive rights). The appellant
acknowledged below that she was serving in a probationary period at the time of
her termination, and she has not otherwise alleged below or on review that the
Board has jurisdiction over her appeal under 5 U.S.C. chapter 75 or 5 C.F.R.
§§ 315.805, 315.806.
With respect to the appellant’s claim that she was unable to submit a
jurisdictional response because she found e-Appeal Online inaccessible, a party
who has registered as an e-filer may alternatively file any pleading by
non-electronic means, i.e., via postal mail, fax, or personal or commercial
delivery. 5 C.F.R. § 1201.14(f) (2023). Accordingly, the appellant has not
shown that she was unable to submit a jurisdictional response. 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.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.
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 | Foster_D._Madison_P_PH-315H-23-0098-I-1_Final_Order.pdf | 2024-08-13 | D. MADISON PAIGE FOSTER v. DEPARTMENT OF THE NAVY, MSPB Docket No. PH-315H-23-0098-I-1, August 13, 2024 | PH-315H-23-0098-I-1 | NP |
708 | https://www.mspb.gov/decisions/nonprecedential/Nishimura_Shannon_K_SF-0752-20-0282-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHANNON K. NISHIMURA,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
SF-0752-20-0282-I-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shannon K. Nishimura , Aiea, Hawaii, pro se.
Sean Wong , Esquire, Joint Base Pearl Harbor-Hickam, 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 constructive suspension 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
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).
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 constructive
suspension analysis and find that the appellant was not an individual with a
disability, we AFFIRM the initial decision.
BACKGROUND
The appellant is a Maintenance Worker, WG-08 at the Navy Facility
Engineering Command (Command) in Pearl Harbor, Hawaii. Initial Appeal File
(IAF), Tab 1 at 1, Tab 10 at 4-5. On November 21, 2019, the appellant had
rotator cuff repair surgery on his right shoulder. IAF, Tab 1 at 7; Hearing
Recording (HR) (testimony of appellant). From November 21 through December
16, 2019, the appellant was on leave recovering from the surgery. IAF, Tab 1 at
15, Tab 9 at 9; HR (testimony of appellant). During that time, on December 9,
2019, the appellant’s supervisor was informed that the Command had ceased
offering light duty and that an employee should not report to duty unless they
could perform their full-time duties. IAF, Tab 9 at 9.
On December 16, 2019, the appellant reported to work and was told by his
supervisor that because he was not cleared for full duty, he would have to take
leave without pay (LWOP), sick, or annual leave. Id.; HR (testimony of
appellant). On January 3, 2020, the appellant reported to work with medical2
restrictions that prevented him from lifting his right arm above shoulder level or
carrying or lifting more than 25 pounds. IAF, Tab 1 at 7, Tab 9 at 9;
HR (testimony of appellant). Because the appellant was not cleared for full duty,
and the agency had no light duty assignments for the appellant, the agency did not
return him to work and the appellant remained on LWOP. IAF, Tab 9 at 9;
HR (testimony of appellant). On January 14, 2020, the appellant again reported
for duty but was still under medical restrictions, and thus the agency did not
return him to work. IAF, Tab 1 at 10-14, Tab 9 at 9; HR (testimony of appellant).
On February 14, 2020, the appellant was cleared by the Navy clinic to return to
full duty, and he returned to work that day.2 IAF, Tab 9 at 9; HR (testimony of
appellant).
The appellant filed an appeal with the Board claiming that the agency
failed to provide him with accommodations and improperly failed to return him to
work within his medical restrictions, constituting a suspension. IAF, Tab 1 at 2,
Tab 12 at 3, Tab 14 at 3; HR (testimony of appellant). The appellant requested a
hearing. IAF, Tab 1 at 1. After holding the hearing, the administrative judge
issued an initial decision dismissing the appellant’s appeal for lack of
jurisdiction. IAF, Tab 19, Initial Decision (ID). The administrative judge
analyzed the appellant’s claim as a constructive suspension and explained that in
order to establish Board jurisdiction the appellant must establish that he lacked a
meaningful choice in his absence and that the agency’s wrongful actions deprived
him of that choice. ID at 5. The administrative judge asserted that if the
appellant’s failure to return to duty was caused by the agency’s failure to properly
2 In one of his filings with the Board, the appellant claimed that he did not return to
work until February 20, 2020. IAF, Tab 12 at 3. The agency has asserted that the
appellant returned to work on February 14, 2020. IAF, Tab 9 at 9. During his
testimony, the appellant was unsure of the exact dates but confirmed that he was absent
from work for a little less than three months. HR (testimony of appellant).
Furthermore, the last leave request in the record is for the period from February 10
through February 13, 2020. IAF, Tab 1 at 12. Accordingly, we accept that the
appellant returned to duty on February 14, 2020. We further note that the date of the
appellant’s return is not material to the disposition of this case.3
accommodate him, then the appellant would have established a constructive
suspension. ID at 6-7. Thus, the administrative judge determined that the
appellant must establish that he was entitled to reasonable accommodation under
the Americans with Disabilities Act Amendments Act (ADAAA) in order to
establish that he was constructively suspended. ID at 7.
Analyzing whether the appellant was entitled to reasonable accommodation
under the ADAAA, the administrative judge first determined the threshold issue
of whether the appellant was a qualified individual with a disability. ID at 7-11.
Finding that the appellant was substantially limited in the use of his right arm
from the date of his surgery to the time he was cleared for full duty, the
administrative judge determined that the appellant met the definition of an
individual with a disability under the ADAAA. ID at 9. However, the
administrative judge concluded that the appellant did not meet the definition of a
qualified individual with a disability because he was unable to perform the
essential functions of his position with or without reasonable accommodation.
ID at 9-11. Furthermore, the administrative judge noted that the agency was
under no obligation to provide the appellant with light duty under the applicable
collective bargaining agreement (CBA), and the appellant failed to show that light
duty assignments were available. ID at 11-12. Accordingly, the administrative
judge determined that the appellant had not established he was constructively
suspended and dismissed the appeal. ID at 12-13.
This petition for review followed. Petition for Review (PFR) File, Tab 1
at 3. On review, the appellant argues that there was work available that he could
have performed within his medical restrictions. Id. Namely, the appellant asserts
that his supervisor should have scheduled “housing area flushing,” which would
have “created work either [as a commercial driver’s license] driver or spotter or
lead,” which the appellant claims he could have performed within his restrictions.
Id. 4
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant does not have to prove that he was entitled to reasonable
accommodation to establish that the agency’s actions were wrongful.
While we agree with the administrative judge’s conclusion that the
appellant failed to establish that he was constructively suspended, we do not
believe she comprehensively analyzed his claim. ID. Specifically, we believe
that the administrative judge improperly limited her review of the agency’s
refusal to return the appellant to work, analyzing only whether the agency
improperly failed to accommodate the appellant under the ADAAA. ID at 7-11.
Therefore, we find it necessary to clarify that the appellant was not required to
establish an entitlement to reasonable accommodation under the ADAAA to
establish that the agency’s actions were improper and constituted a constructive
suspension. The appellant needed only to establish that the agency was wrongful
in failing to bring him back to duty. Romero v. U.S. Postal Service , 121 M.S.P.R.
606, ¶¶ 8-9 (2014).
The Board has determined that certain leaves of absences may be
appealable under chapter 75 as constructive suspensions. Id. at ¶ 5. 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 is not. Rosario-Fabregas v. Department of the Army ,
122 M.S.P.R. 468, ¶ 8 (2015). To demonstrate that an absence was, in part, not
voluntary and is an actionable constructive suspension, an appellant must show
that (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. Id.
Assuming the jurisdictional requirements of 5 U.S.C. chapter 75 are otherwise
met, proof of these two things is sufficient to establish Board jurisdiction. Id.
This analysis extends to situations in which the agency prevents an appellant’s
return to work after an initial voluntary leave of absence. Id.; Romero,
121 M.S.P.R. 606, ¶ 8-11 (applying a constructive suspension framework when5
the appellant took leave due to a medical condition, later reported to duty but was
not allowed to perform work because the agency could not accommodate his
medical restrictions).
When an appellant is released to return to work with medical restrictions,
and the agency does not return him to work, the Board has found that this
deprives an appellant of a meaningful choice. Romero, 121 M.S.P.R. 606, ¶ 9;
Bean v. U.S. Postal Service , 120 M.S.P.R. 397, ¶ 13 (finding that the appellant’s
absence was not voluntary when he was presented with the option of working
outside his medical restrictions or taking leave). Here, it is undisputed that the
appellant reported to work several times with medical restrictions, and the agency
did not return him to work until he was cleared for full duty. IAF, Tab 1 at 7,
10-12, Tab 9 at 9, Tab 12 at 3, Tab 14 at 3; HR (testimony of appellant).
Thus, the appellant has established the first prong of the constructive suspension
framework, i.e., that he lacked a meaningful choice in his absence.
Romero, 121 M.S.P.R. 606, ¶ 9.
Therefore, the issue in dispute is the second prong of the analysis, whether
the agency’s actions were wrongful when it refused to allow the appellant to
return to work. Id.,¶¶ 8-9. As explained by our reviewing court “[w]hen an
employee voluntarily takes leave, an agency may properly refuse to allow the
employee to resume working if the employee does not satisfy the agency’s
conditions for returning to work.” Rosario-Fabregas v. Merit Systems Protection
Board, 833 F.3d 1342, 1347 (Fed. Cir. 2016). This does not constitute a
constructive suspension. Id. If, however, the agency’s conditions for returning to
work are wrongful, then the employee’s absence may be deemed a constructive
suspension. See id.; see also Rosario-Fabregas , 122 M.S.P.R. 468, ¶ 8.
We find that our reasoning in Romero v. U.S. Postal Service is particularly
applicable to this matter. In Romero, the appellant voluntarily took a leave of
absence from work due to his medical condition. Romero, 121 M.S.P.R. 606, ¶ 2.
Subsequently, the appellant was released by his doctors to return to work;6
however, the appellant’s physicians recommended accommodations, including a
more stable schedule, less stress, and less noise to prevent exacerbating the
appellant’s condition. Id.,¶¶ 10-11. The Board, on review, found that there was
no evidence that the appellant could perform his supervisory position, or another
supervisory role, within his medical restrictions.3 See id.,¶¶ 11-12. Because the
Board determined that the appellant could not perform his position within his
medical restrictions, the Board found that there was nothing wrongful or improper
about the agency’s failure to return the appellant to work. Id.
Applying the same reasoning as in Romero here, we find that the appellant
did not establish that the agency improperly failed to return him to duty. As a
Maintenance Worker, the appellant was responsible for operational and
preventative maintenance, inspecting, repairing, and replacing machinery and
equipment, housekeeping such as sweeping, brushing, mopping, and operating a
motor vehicle. IAF, Tab 10 at 5-6; HR (testimony of appellant’s supervisor).
The position also required that the appellant be able to carry up to 50 pounds,
including such heavy objects as pipes, bags of concrete, and manhole covers.
IAF, Tab 10 at 7; HR (testimony of appellant’s supervisor). We find no evidence
that any accommodation would have allowed the appellant to perform these duties
within his medical restrictions. IAF, Tab 1 at 7-11, Tab 9 at 9, Tab 10 at 5-7;
HR (testimony of appellant’s supervisor). Therefore, we do not find anything
improper or wrongful in the agency’s requirement that the appellant be medically
cleared without restrictions to return to duty, as he was unable to
comprehensively or safely perform his essential duties within his medical
restrictions. IAF, Tab 1 at 7-11, Tab 9 at 9, Tab 10 at 5-7; HR (testimony of
appellant’s supervisor).
3 The agency had offered Mr. Romero three nonsupervisory positions within his medical
restrictions, which he declined. Romero, 121 M.S.P.R. 606, ¶¶ 3, 11. 7
There is no evidence that there was available light duty assignment within the
appellant’s medical restrictions.
We agree with the administrative judge that, while the appellant asserts that
the agency should have assigned him to light duty, the agency was under no
obligation to do so. ID at 11-12. An agency is required to offer available light
duty when required to do so by policy, regulation, or contract. See Clavin v. U.S.
Postal Service, 99 M.S.P.R. 619, ¶ 8 (2005) (finding that if an agency has denied
a request for light duty, and is obligated by policy, regulation, or contract to offer
available light-duty work, then the agency’s refusal to offer the employee light
duty may constitute a suspension). The agency, at the time the appellant returned
to work, did not have a policy requiring it to offer available light duty
assignments to employees who were unable to perform their full duties. IAF, Tab
9 at 9; HR (testimony of appellant’s supervisor). Additionally, the applicable
CBA only requires that the agency give “equitable consideration, on a case-by-
case basis” to temporarily assigning an employee to a position for which he has
the physical capacity to perform. IAF, Tab 9 at 10. The appellant only identified
discrete individual tasks he could perform, such as driving or performing
inspections, but did not identify any position that would have accommodated his
physical capabilities, nor is there any evidence that such a position existed. IAF,
Tab 12 at 3, Tab 14 at 3; HR (testimony of appellant); PFR File, Tab 1 at 3.
Accordingly, we agree with the administrative judge that the agency was under no
obligation under agency policy or the CBA to assign the appellant to light duty
assignment. ID at 11-12.
We further agree with the administrative judge that the agency was under
no obligation to create light duty assignments for the appellant to perform.
Agencies are required only to assign available light duty assignments if obligated
by policy, regulation, or contract; there is no obligation to create light duty
assignments for employees. See Clavin, 99 M.S.P.R. 619, ¶ 8 (limiting the
agency’s requirement to offer light duty assignment when obligated by policy,8
regulation, or contract to light duty assignments that are available). Here, there is
no evidence that the agency had any light duty assignments to offer the appellant.
The appellant has only pointed to discrete tasks he could perform in his current
position, not a light duty assignment that was available at the time. IAF, Tab 12
at 3, Tab 14 at 3; HR (testimony of appellant); PFR File, Tab 1 at 3. Indeed, on
review, the appellant effectively concedes that his supervisor would have had to
create work for him by scheduling “housing area flushing,” which would have
created work as a driver, spotter, or lead that the appellant could have performed.
PFR File, Tab 1 at 3. Given the above, we agree with the administrative judge
that there was no evidence that available light duty assignments existed for the
agency to give to the appellant. ID at 11-12.
Finally, while the appellant asserted below that co-workers were provided
light duty, we find nothing in the record that supports the assertion that any
employee was provided light duty after the agency ceased offering light duty
assignments. IAF, Tab 9 at 9, Tab 12 at 3, Tab 14 at 3. Although the appellant
identified one employee who was allegedly given light duty, the record
establishes that this employee was removed from his light duty assignment on
December 9, 2019, upon notification that the Command had ceased providing
light duty.4 HR (testimony of appellant’s supervisor). Therefore, we see no
evidence that any employee within the appellant’s unit, under his supervisor’s
command, was assigned to light duty at the time the appellant first reported to
work on December 16, 2019. IAF, Tab 1 at 2, Tab 12 at 3; HR, (testimony of
appellant’s supervisor). Therefore, we find nothing wrong or improper in the
agency’s denial of light duty assignment.
4 The employee was cleared for full duty and returned to work on December 16, 2019.
HR (testimony of appellant’s supervisor).9
The appellant did not establish that he was a qualified individual with a disability,
and thus did not establish that the agency improperly failed to reasonably
accommodate him.
Because the appellant claimed below that the agency’s actions were
improper when it failed to reasonably accommodate his medical restriction, an
analysis of the claim under the ADAAA is appropriate. IAF, Tab 4 at 1, 3-4,
Tab 14 at 3; HR (testimony of appellant). We agree with the administrative judge
that the appellant did not establish that he met the definition of a qualified
individual under the ADAAA and thus had no entitlement to reasonable
accommodation.5 ID at 7-11. However, we find that the administrative judge
erred in determining that the appellant was an individual with a disability, and
modify the initial decision accordingly.
As a Federal employee, the appellant’s claim of disability discrimination
arises under the Rehabilitation Act. Miller v. Department of the Army ,
121 M.S.P.R. 189, ¶ 13, n.3 (2014). The standards under the Americans with
Disabilities Act, as amended by the ADAAA, have been incorporated by
reference into the Rehabilitation Act and the Board applies them to determine
whether there has been a Rehabilitation Act violation. Id.; 29 U.S.C. § 791(f).
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.
§ 12112(a). Therefore, to establish that the agency was wrongful in failing to
provide him with a reasonable accommodation, the appellant must establish that
he was entitled to that reasonable accommodation as a qualified individual with a
disability.
First, to be an individual with a disability, the appellant must establish that
he: (1) has a physical or mental impairment that substantially limits one or more
major life activities; (2) has a record of such impairment; or (3) is regarded as
having such an impairment. 42 U.S.C. § 12102(1); Thome v. Department of
5 Because the appellant failed to meet the threshold issue in a disability discrimination
claim, we do not address any further steps in the disability discrimination framework. 10
Homeland Security , 122 M.S.P.R. 315, ¶ 24 (2015); 29 C.F.R. § 1630.2(g)(1).
An impairment qualifies as a disability if it substantially limits the ability of an
individual to perform a major life activity as compared to most people in the
general population. 29 C.F.R. § 1630.2(j)(1)(ii). Factors to consider in
determining whether a condition substantially limits a major life activity include
the difficulty, effort, or time required to perform the activity; the pain
experienced performing the activity; the length of time the activity can be
performed; and/or the way an impairment affects the operation of a major bodily
function. 29 C.F.R. § 1630.2(j)(4). The Equal Employment Opportunity
Commission (EEOC) has explained in its regulations that while Congress
intended for the term “substantially limits” to be construed broadly, not every
impairment will constitute a disability under the ADAAA. 29 C.F.R. § 1630.2(j)
(1)(i)-(ii). For instance, impairments that only last a short period of time are
typically not covered under the ADAAA unless they are sufficiently severe.
29 C.F.R. Appendix at § 1630.2(j)(1)(ix).
Here, the appellant had limited use of his right arm for approximately
10 weeks while he recovered from right shoulder surgery. IAF, Tab 1 at 7-11,
Tab 9 at 9; HR (testimony of appellant). The appellant was restricted only in the
use of his right arm, insomuch that he was prohibited from lifting or carrying
items over 25 pounds, or lifting his right arm above his head. IAD, Tab 1 at 7,
9-10. As of February 14, 2020, the appellant returned to full duty with no
medical restrictions, and there is no evidence of any long-term or permanent
impact from the surgery. IAF, Tab 9 at 9, Tab 12 at 3; HR (testimony of
appellant). Therefore, looking at the length and duration of the impairment, as
well as the nature of the medical restrictions, we do not believe the appellant’s
impairment was sufficiently severe as to constitute a substantial limitation on a
major life activity in comparison with the general population. On review of the
record, we believe there is simply a lack of evidence that the appellant’s injury11
was sufficiently severe that this short-term impairment would constitute disability
under the ADAAA.
The decisions from several tribunals, including the Equal Employment
Opportunity Commission (EEOC), support our finding that the appellant’s injury
is not considered a disability under the ADAAA.6 See Clark v. Boyd Tunica ,
Inc., No. 3:14-cv-00204-MPM-JMV, 2016 WL 853529 at *5 (N.D. Miss. Mar. 1,
2016) (finding that a broken foot did not substantially limit major life activities
and thus did not meet the definition of a disability under ADAAA); Martinez v.
New York State Division of Human Rights , No. 1:13-vc-1252-GHW,
2015 WL 437399 at *8 (S.D.N.Y. Feb. 2, 2015) (finding temporary injuries from
slip-and-fall accident did not constitute a disability); Kruger v. Hamilton Manor
Nursing Home, 10 F. Supp. 3d 385, 389 (W.D.N.Y. 2014) (finding that a broken
arm is not considered a disability under the ADAAA); Bush v. United States
Postal Service, 964 F. Supp. 2d 401, 421 (W.D. Pa. 2013) (finding that a
foot/ankle sprain is not a disability because it did not substantially limit a major
life activity); see also Idell v. Department of Agriculture , EEOC Appeal
No. 0120140792, 2017 WL 491366 at *1-2 (Jan. 26, 2017) (finding complainant
was not entitled to reasonable accommodation when recovering from surgery
on her left foot when the medical documentation indicated the condition was
short-term); Complainant v. Department of Homeland Security , EEOC Appeal
No. 0120122572, 2014 WL 7005948 at *5 (Dec. 4, 2014) (finding no evidence of
qualifying disability within the meaning of the ADAAA when complainant
6 We acknowledge that U.S. District Court decisions are not binding on the Board, but
the Board may follow such decisions to the extent, as here, it finds the reasoning
persuasive. Walker v. Department of the Army , 104 M.S.P.R. 96, ¶ 11 n.2 (2006).
We further acknowledge that while decisions from the EEOC are similarly not binding,
the Board generally defers to the EEOC on issues of substantive discrimination law
unless the EEOC’s decision rests on civil service law for its support or is so
unreasonable that it amounts to a violation of civil service law. Southerland v.
Department of Defense , 119 M.S.P.R. 566, ¶ 20 (2013), overruled on other grounds by
Pridgen v. Office of Management and Budget , 2022 MSPB 31. We find that in this
matter, the EEOC’s decisions neither rest on nor violate civil service law, and thus
believe it appropriate to defer to the EEOC on this matter. 12
recovered from her leg injury within four weeks). Based upon the reasoning in
these cases, which we find persuasive, we find that the appellant’s short-term
impairment does not meet the definition of disability under the ADAAA, and thus
the appellant was not an individual with a disability.
Second, even assuming arguendo that the appellant is an individual with a
disability under the ADAAA, we agree with the administrative judge that the
appellant was not a “qualified individual” under the ADAAA. ID at 9-11.
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). Both a claim of
disability discrimination based on an individual status as disabled and a claim
based on an agency’s failure to reasonably accommodate that disability require
that the individual be “qualified.” See McNab v. Department of the Army ,
121 M.S.P.R. 661, ¶¶ 6, 8 n.5, 9 (2014)(recognizing that only a qualified
individual with a disability is entitled to relief for his disability discrimination
claim); Clemens v. Department of the Army , 120 M.S.P.R. 616, ¶¶ 10-11, 17
(reversing an administrative judge’s finding that an agency denied reasonable
accommodation, concluding that the appellant was not a qualified individual with
a disability and thus was not entitled to reasonable accommodation).
The appellant is a Maintenance Worker, and performs operational and
preventative maintenance, which includes lifting heavy objects weighing up to
50 pounds such as pipes, manhole covers, and bags of concrete. IAF, Tab 10
at 5-9; HR (testimony of appellant’s supervisor). The appellant could not have
performed these tasks within his medical restrictions, which proscribed light duty
that included carrying or lifting no more than 25 pounds. IAF, Tab 1 at 7, 9-10;
HR (testimony of the appellant). The agency is not obligated to remove or assign
the essential duties of the appellant’s position to other employees to
accommodate the appellant’s restrictions. See Henry v. Department of Veterans
Affairs, 100 M.S.P.R. 124, ¶ 13 (2005) (stating that excusing an individual from13
performing an essential function of his position is not an accommodation).
Therefore, we see no reasonable accommodation that would allow the appellant to
perform the essential duties of his position within his medical restrictions.
Because the appellant could not perform the essential duties of his position with
or without reasonable accommodation, we agree with the administrative judge
that he was not a qualified individual with a disability. ID at 9-11.
Because the appellant is not a qualified individual with a disability under
the ADAAA, he is not entitled to reasonable accommodation. Accordingly, the
appellant has failed to establish that the agency’s actions were wrongful under a
theory that it was unlawful under the ADAAA. Thus, because the appellant has
failed to establish that the agency’s actions were wrongful, we agree that the
Board lacks jurisdiction, and his appeal was properly dismissed.7
NOTICE OF APPEAL RIGHTS8
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
7 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 Equal Employment Opportunity
Commission (EEOC) regulations, to reissue a notice under 29 C.F.R. § 1614.108(f)
giving the appellant the right to elect between a hearing before an EEOC administrative
judge and an immediate final decision. See 29 C.F.R. § 1614.302(b).
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.14
this 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. The15
Board neither endorses the 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 file16
with the EEOC no later than 30 calendar days after your representative 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.9 The court of appeals must receive your petition for
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. 17
review within 60 days of the date of issuance of this decision. 5 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. 18
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Nishimura_Shannon_K_SF-0752-20-0282-I-1_Final_Order.pdf | 2024-08-13 | SHANNON K. NISHIMURA v. DEPARTMENT OF THE NAVY, MSPB Docket No. SF-0752-20-0282-I-1, August 13, 2024 | SF-0752-20-0282-I-1 | NP |
709 | https://www.mspb.gov/decisions/nonprecedential/Phan_Minh_H_DE-0752-22-0270-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MINH H. PHAN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DE-0752-22-0270-I-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jacqueline Cooper , Albuquerque, New Mexico, for the appellant.
Mickel-Ange Eveillard , 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
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review the appellant argues, among other
things, that he was removed in retaliation for his equal employment opportunity
(EEO) activity and in violation of his due process rights. 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.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
2 Because the administrative judge applied the correct standard to find that the appellant
did not show that his EEO activity was a motivating factor in his removal, the Board’s
decision in Wilson v. Small Business Administration , 2024 MSPB 3, which was issued
after the initial decision, does not impact this appeal.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017 ). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Phan_Minh_H_DE-0752-22-0270-I-1_Final_Order.pdf | 2024-08-13 | MINH H. PHAN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DE-0752-22-0270-I-1, August 13, 2024 | DE-0752-22-0270-I-1 | NP |
710 | https://www.mspb.gov/decisions/nonprecedential/Thomas_Dietrich_A_AT-0752-20-0489-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIETRICH ANN THOMAS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-20-0489-I-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dietrich Ann Thomas , New Orleans, Louisiana, pro se.
Beryl Denise Torrence and Linda Fleck , New Orleans, Louisiana, 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 settled.2 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).
2 The appellant has since filed two copies of a pleading entitled “Motion to Stay with
Merit System[s] Protection Board and File Complaint with the U.S. Office of Special
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 asks the Board to set aside the settlement
agreement that resolved this appeal. An appellant may challenge the validity of a
settlement agreement if she believes it was unlawful, involuntary, or the result of
fraud or mutual mistake. Wofford v. Department of Justice , 115 M.S.P.R. 468,
¶ 6 (2010). The party challenging the validity of a settlement agreement bears a
heavy burden of showing a basis for invalidation. Id.
Here, the appellant asserts that the settlement agreement was the result of a
conspiracy between the chief administrative judge, the agency representative, and
the presiding administrative judge to commit fraud by staging evidence against
her. However, the appellant has provided no evidence of the alleged conspiracy,
and she has not explained why she did not object to the alleged statements by the
chief administrative judge or otherwise complain of fraud or coercion during the
proceedings below. See Forston v. Department of the Navy , 60 M.S.P.R. 154,
Counsel [(OSC)] for Full Investigation, and Prosecution Involving Prohibited Personnel
Practices, Reprisal for Whistle Blowing and Discrimination.” Petition for Review File,
Tabs 8-9. The motion is DENIED. If the appellant wishes to file a new claim with
OSC, she may contact OSC directly. 2
160 (1993). Indeed, it was the appellant who moved to dismiss the appeal as
settled. Initial Appeal File, Tab 23, Initial Decision at 1. To the extent the
appellant claims that either or both administrative judges were biased against her,
she has failed to overcome the presumption of honesty and integrity that
accompanies administrative adjudicators . See Oliver v. Department of
Transportation, 1 M.S.P.R. 382, 386 (1980). Furthermore, to the extent the
appellant believes that her former representative failed to act in her best interest
in negotiating the settlement agreement, she is bound by her chosen
representative’s actions and consequently bound by the terms of the settlement
agreement. See Dunn v. Department of the Army , 100 M.S.P.R. 89, ¶ 10 (2005).
Accordingly, we deny the appellant’s petition.
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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Thomas_Dietrich_A_AT-0752-20-0489-I-1_Final_Order.pdf | 2024-08-13 | DIETRICH ANN THOMAS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-20-0489-I-1, August 13, 2024 | AT-0752-20-0489-I-1 | NP |
711 | https://www.mspb.gov/decisions/nonprecedential/Bhagat_RajenDA-315H-23-0273-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAJEN BHAGAT,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION,
Agency.DOCKET NUMBER
DA-315H-23-0273-I-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rajen Bhagat , League City, Texas, pro se.
Christopher W. Miner , Esquire, 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
¶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 he was improperly designated as 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).
probationary employee despite his 13 years of service to the agency as a
contractor and that his termination was the result of his supervisors’ bias and
discrimination against him. He also disputes 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).
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. 4
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 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 | Bhagat_RajenDA-315H-23-0273-I-1_Final_Order.pdf | 2024-08-13 | RAJEN BHAGAT v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MSPB Docket No. DA-315H-23-0273-I-1, August 13, 2024 | DA-315H-23-0273-I-1 | NP |
712 | https://www.mspb.gov/decisions/nonprecedential/Casey_LanceDC-844E-22-0298-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LANCE CASEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DC-844E-22-0298-I-2
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Lance Casey , Montclair, Virginia, pro se.
James Mercier , 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
affirmed the reconsideration decision of the Office of Personnel Management
denying his application for disability retirement benefits under the Federal
Employees’ Retirement System (FERS). On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
reraises his argument below that he satisfied the FERS disability retirement
criteria because his hearing loss and tinnitus caused his conduct deficiencies. He
also asserts, among other things, that the administrative judge erred in weighing
the evidence, improperly excluded consideration of his adjustment disorder
diagnosed after he filed his disability retirement application, and erred in
requiring him to prove that accommodation of his medical conditions was
unreasonable. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under
section 1201.115 for granting the petition for review. Therefore, we DENY the
petition for review and AFFIRM the initial decision, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation3
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Casey_LanceDC-844E-22-0298-I-2_Final_Order.pdf | 2024-08-13 | LANCE CASEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-844E-22-0298-I-2, August 13, 2024 | DC-844E-22-0298-I-2 | NP |
713 | https://www.mspb.gov/decisions/nonprecedential/Maciel_AnnaSF-844E-20-0420-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANNA MACIEL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-20-0420-I-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Maciel , Gilroy, California, 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
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) denying her disability retirement application as untimely filed. Generally,
we grant petitions such as this one only in the following circumstances: the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to demonstrate mental incompetence requisite for waiver
of the time limit for applying for disability retirement.
The appellant argues that she produced sufficient evidence of her mental
incompetence for waiver of the time limit for applying for disability retirement
under the Federal Employees’ Retirement System (FERS).2 Petition for Review
(PFR) File, Tab 1 at 6-9. The administrative judge concluded that the appellant’s
evidence was insufficient to demonstrate that she was mentally incompetent
during the relevant period. Initial Appeal File (IAF), Tab 18, Initial Decision
(ID) at 5-7. In order to establish her entitlement to a waiver of the 1-year time
limit for filing a disability retirement application, the appellant must prove by
preponderant evidence3 that she was mentally incompetent when she was
2 The parties do not challenge the administrative judge’s finding that the appellant’s
application for disability retirement was untimely, and we see no reason to disturb that
finding.
3 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 a2
separated from service or within 1 year thereafter, and that she filed her
application with OPM within 1 year of the date she was restored to competency or
within 1 year of the date of the appointment of a fiduciary, whichever occurred
first. 5 U.S.C. § 8453; 5 C.F.R. § 1201.56(b)(2)(ii). An applicant for disability
retirement need not be institutionalized or completely unable to manage her own
affairs to be deemed incompetent. Rapp v. Office of Personnel Management ,
483 F.3d 1339, 1341 (Fed. Cir. 2007). A person who suffers from mental
disabilities would not necessarily be considered incompetent. Id. Mental
incompetence is instead a diminished ability to handle one’s affairs in a normal
fashion. French v. Office of Personnel Management , 810 F.2d 1118, 1120 (Fed.
Cir. 1987). In determining whether an applicant for disability retirement benefits
was or is mentally incompetent, the Board requires medical evidence supporting
subjective opinions that the applicant is incompetent. Arizpe v. Office of
Personnel Management , 88 M.S.P.R. 463, ¶ 9 (2001). A medical provider’s
conclusion that an applicant is mentally incompetent is persuasive only if the
provider explains how a mental illness renders her incompetent. Gonzales v.
Office of Personnel Management , 91 M.S.P.R. 46, ¶ 5, aff’d, 48 F. App’x 747
(Fed. Cir. 2002).
The appellant on review asserts that she provided “objective medical
documentation” demonstrating her history of anxiety and depression. PFR File,
Tab 1 at 8-9. For example, she cites medical documentation showing treatment
for emotional instability with associated depression and anxiety from 1997-1999,
and again from 2015-2019. IAF, Tab 4 at 11, 18, 38, Tab 14. She additionally
cites a 2019 referral order diagnosing her with an unspecified anxiety disorder
and payment for treatment. IAF, Tab 5 at 18, Tab 13 at 48. Finally, she cites a
2017 evaluation for neck and low back pain. IAF, Tab 4 at 96-105. The
evaluation specifically noted her treatment for anxiety disorder and depression.
Id. at 98. The evaluation further found her concentration and calculation
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q). 3
impaired, concluding that the appellant had “[b]orderline intellectual
functioning.”4 Id. at 102-04. The evaluation found the appellant moderately or
moderately-to-severely impaired in numerous categories, including her ability to
follow complex instructions, maintain attention and concentration, adapt to
changes in job routine or stressors in the workplace, interact appropriately with
coworkers, supervisors, and the public, and withstand the stress of a routine
workday. Id. at 105.
Nonetheless, we agree with the administrative judge that the appellant has
failed to meet her burden of demonstrating mental incompetence during the
relevant period. Although the medical evidence suggests the appellant had some
emotional and cognitive impairments, none of it supports a conclusion that the
appellant’s psychological problems rendered her mentally incompetent or unable
to handle her personal affairs. IAF, Tab 4 at 11, 18, 38, 98-105, Tab 5 at 18.
Specifically, the April 2017 evaluation found that the appellant was oriented and
aware of current events, and her thought process was intact, linear, and logical.
Id. at 102. The evaluation further noted that the appellant should be able to
communicate, understand, read, drive, take public transportation, and work in any
work environment except on unprotected heights. Id. at 100-01. The appellant
was also deemed unimpaired in following simple instructions, performing simple
and repetitive tasks, and managing her funds. Id. at 105. The evaluation found
that her cognitive complaints were “likely secondary to emotional dysfunction.”
Id. at 104. Consequently, her medical provider’s statements do not explain how
any mental illness renders her incompetent. Indeed, the appellant was capable of
attending the medical examination unaccompanied, and she was described as alert
and oriented. Id. at 98, 102.
4 Borderline intellectual functioning describes a group of people whose mental
functioning is the focus of clinical attention and is on the border between normal
intellectual functioning and intellectual disability. Jannelien Wieland & Frans G.
Zitman, It is time to bring borderline intellectual functioning back into the main fold of
classification systems , BJPsych Bull, vol. 40(4) (Aug. 2016),
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4967780. 4
The appellant further challenges the administrative judge’s reasoning that,
because she was able to handle some affairs during the relevant period, she was
not mentally incompetent. PFR File, Tab 1 at 6-7. The appellant is correct that
the fact that she could handle some personal affairs during the period does not
automatically render her competent. See French, 810 F.2d at 1120 (finding the
statute may be satisfied by one having some minimal capacity to manage her own
affairs, and need not be a “raving lunatic continuously”). Nonetheless, we agree
with the administrative judge that the fact that the appellant could handle some
personal affairs during and around the filing period weighs against a finding of
mental incompetence. ID at 7; see Smith v. Office of Personnel Management ,
82 M.S.P.R. 642, ¶ 10 (1999) (finding that the appellant’s participation in a
removal appeal and filing of a discrimination complaint during the period for
filing a disability retirement application constituted significant circumstantial
evidence that the appellant was not incompetent), aff’d, 230 F.3d 1380 (Fed. Cir.
2000) (Table).
To the extent the administrative judge found that the appellant contacted
the Social Security Administration (SSA) for assistance with completing an
application and filed for Social Security Disability Insurance (SSDI) benefits
during the 1-year period after her separation, we note that her communication
with SSA and application for SSDI occurred about 2 months before separating
from her employing agency. IAF, Tab 4 at 69, Tab 13 at 34; ID at 7.
Nevertheless, there is no evidence that the appellant’s mental faculties diminished
or otherwise changed during this time or throughout the 1-year filing period.
Accordingly, we consider the evidence that the appellant was able to manage her
personal affairs by attending various appointments shortly before and after the
filing period in determining her mental incompetence. IAF, Tab 4 at 11, 17,
19-21; see Bruce v. Office of Personnel Management , 119 M.S.P.R. 617, ¶ 12
(2013) (discussing consideration of medical evidence of mental incompetence that
occurred outside the 1-year filing period when there is no change in the5
appellant’s condition). Additionally, the April 2017 evaluation discussed above
took place during the filing period and noted that the appellant arrived
unaccompanied and was able to manage her personal funds. IAF, Tab 4 at 98,
105. Accordingly, we find that this circumstantial evidence supports the
conclusion that the appellant was not incompetent. See Smith, 82 M.S.P.R. 642,
¶ 10.
While not dispositive, the Board must consider an award of SSA benefits in
determining an individual’s eligibility for disability retirement. Szejner v. Office
of Personnel Management , 99 M.S.P.R. 275, ¶ 12 (2005), aff’d, 167 F. App’x 217
(Fed. Cir. 2006). The record below contained a finding from the SSA that the
appellant was disabled and entitled to monthly disability benefits starting in
December 2016. IAF, Tab 4 at 17. However, mental incompetence regarding an
untimely filed disability retirement application and mental disability are not the
same thing. Stussy v. Office of Personnel Management , 662 F. App’x 972, 975
(Fed. Cir. 2016).5 Notwithstanding the appellant’s SSA award, we find that she
has not shown she was mentally incompetent as required for a waiver of the filing
deadline.
The appellant additionally argues that her mental incompetence is
demonstrated by a series of poor decisions she made during the relevant period,
including not claiming workers’ compensation or pursuing an equal employment
opportunity complaint. PFR File, Tab 1 at 7, 9-10; IAF, Tab 15 at 11. The
administrative judge found that the appellant failed to demonstrate that these
allegedly poor decisions were the result of mental incompetence. ID at 7. We
agree. Regardless of whether her emotional and cognitive problems led her to not
pursue various options, these decisions, poor or otherwise, do not demonstrate
mental incompetence. She asserts that, during the relevant period, her stress
levels were high and she got “brain fog.” PFR File, Tab 1 at 7; IAF, Tab 4 at 10.
5 The Board may rely on nonprecedential decisions of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds the court’s reasoning persuasive. E.g.,
Encarnado v. Office of Personnel Management , 116 M.S.P.R. 301, ¶ 12 n.6 (2011).6
She further asserts that her personal hygiene suffered, she was unable to clean her
home, and she could not read or comprehend. PFR File, Tab 1 at 7; IAF, Tab 4
at 10. Of note, the appellant’s April 2017 evaluation concluded that the appellant
“should be able to converse, communicate, understand, read and write in
English.” IAF, Tab 4 at 100. She further states that she missed years with her
family due to the ongoing problems. PFR File, Tab 1 at 7-8; IAF, Tab 4 at 10.
She additionally submitted personal statements from herself, her daughter, and
her roommate. PFR File, Tab 1 at 7; IAF, Tab 4 at 40, 43-44, Tab 15 at 10-13,
Tab 16 at 4-5. We have considered this subjective evidence; but, we agree with
the administrative judge that, considering the record as a whole, the appellant
failed to prove by preponderant evidence that she was mentally incompetent on
the date of her separation from service or within 1 year thereafter. ID at 6.
The appellant’s remaining arguments on review are not persuasive.
The appellant further argues that her employing agency failed to meet its
burdens under 5 C.F.R. § 844.202 regarding her application for disability
retirement. PFR File, Tab 1 at 11. We are unpersuaded.
In certain scenarios, an employing agency must file an application for
disability retirement on behalf of an employee. 5 C.F.R. § 844.202(a). Among
the requisite conditions are the following: (1) the employing agency has issued a
decision to remove the employee; (2) the removal was based on unacceptable
performance, attendance, or conduct stemming from disease or injury; and (3) the
employee is either institutionalized or the agency concludes, based on a review of
medical and other information, that the employee is incapable of making a
decision to file an application for disability retirement. 5 C.F.R. § 844.202(a).
There is a question of whether the appellant was removed or voluntarily
resigned. PFR File, Tab 1 at 5. However, we need not reach this issue here as
the cause of separation is not dispositive. On review, the appellant asserts that
she was not removed by her employing agency but rather she voluntarily quit. Id.
If true, then there is no employing agency obligation to file an application for7
disability retirement on behalf of the employee or otherwise advise her of her
possible eligibility for such retirement benefits. 5 C.F.R. § 844.202(a), (b); see
Elendu v. Office of Personnel Management , 108 M.S.P.R. 1, ¶ 6 n.1 (2008)
(finding that where an employee voluntarily resigned from service, the employing
agency was under no obligation to inform him of his disability retirement
eligibility and of the time limit for filing an application). On the contrary, if she
was removed, not all of the conditions for triggering an employing agency’s
obligation to file have been met. For example, there is no evidence that the
agency concluded, after its review of medical documentation, that the cause for
unacceptable attendance was disease or injury, or that the appellant was incapable
of making a decision to file an application for disability retirement on her own.
5 C.F.R. § 844.202(a)(2), (3). In the absence of such evidence, we find that the
agency was not required under 5 C.F.R. § 844.202(a) to file an application for
her.
When the conditions of 5 C.F.R. § 844.202(a) have not been met, but a
removal is based on reasons apparently caused by a medical condition, the
employing agency must advise the employee of her possible eligibility for
disability retirement and of the time limit for filing an application. 5 C.F.R.
§ 844.202(b)(1). The appellant challenges her employing agency’s disciplinary
actions based on attendance issues, which led to her proposed removal; she
asserts she was absent for doctor and therapy appointments, and her absences
were therefore caused by a medical condition. PFR File, Tab 1 at 4. Thus, she
argues, because the employing agency failed to notify her of her rights and
benefits when it proposed her removal, the 1 -year time limit for filing a disability
retirement application should be waived. Id. at 11. We disagree. The Board has
held that OPM cannot be estopped from enforcing the 1-year statutory filing
deadline, even in the event of a failure on the part of the employing agency to
notify her of her right to file a disability retirement application. See Overall v.
Office of Personnel Management , 52 M.S.P.R. 15, 17 (1991) (addressing an8
untimely filed disability retirement application under the Civil Service Retirement
System (CSRS)); see also Chapman v. Office of Personnel Management ,
110 M.S.P.R. 423, ¶ 9 (finding the statutory and regulatory framework for
disability retirement under both CSRS and FERS are broadly similar), review
dismissed, 363 F. App’x 745 (Fed. Cir. 2009). Thus, even if the employing
agency failed to meet its notice burden, OPM cannot be estopped from enforcing
the filing deadline.
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
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 discri
mination . This option applies to you only if you have claimed that you were
affected by an action that is appealable to the Board and that 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 file10
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, 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 11
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of 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. 12
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Maciel_AnnaSF-844E-20-0420-I-1_Final_Order.pdf | 2024-08-13 | ANNA MACIEL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-20-0420-I-1, August 13, 2024 | SF-844E-20-0420-I-1 | NP |
714 | https://www.mspb.gov/decisions/nonprecedential/Jenkins_ClintonDC-0752-20-0794-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CLINTON JENKINS,
Appellant,
v.
SMITHSONIAN INSTITUTION,
Agency.DOCKET NUMBER
DC-0752-20-0794-I-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Clinton Jenkins , Largo, Maryland, pro se.
David Larson , Esquire, and Katherine Bartell , 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 the appeal as untimely filed. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant constructively received the notice of
proposed removal on April 15, 2020, we AFFIRM the initial decision.
BACKGROUND
On April 10, 2020, the agency mailed to the appellant’s address of record
its decision removing him from Federal service, effective April 25, 2020. Initial
Appeal File (IAF), Tab 7 at 24-29. On August 10, 2020, the appellant filed an
appeal challenging his removal, 107 days after the effective date. IAF, Tab 1. In
response to the timeliness order issued by the administrative judge, the appellant
stated that he did not receive the removal decision until July 2020. IAF, Tab 6.
The administrative judge dismissed the appeal as untimely, finding that the
appellant failed to keep the agency apprised of his current mailing address as
required by 5 C.F.R. § 1201.22(b)(3) and finding that the appellant constructively
received the decision after the agency placed it in the mail to his address of
record. IAF, Tab 9, Initial Decision (ID) at 4. The appellant has filed a petition
for review, arguing that the agency should have used other means to notify him of
the removal decision. Petition for Review (PFR) File, Tab 1. 2
DISCUSSION OF ARGUMENTS ON REVIEW
The appeal was untimely filed.
The appellant bears the burden to prove by preponderant evidence that his
appeal was timely filed. 5 C.F.R. § 1201.56(b)(2)(i)(B). A removal appeal must
be filed no later than 30 days after the effective date of the action being appealed,
or 30 days after the date of the appellant’s receipt of the agency’s decision,
whichever is later. 5 C.F.R. § 1201.22(b)(1). Regarding the receipt of agency
documents, 5 C.F.R. § 1201.22(b)(3) provides that documents may be deemed
constructively received under certain circumstances:
An appellant is responsible for keeping the agency informed of his or
her current home address for purposes of receiving the agency’s
decision, and correspondence which is properly addressed and sent to
the appellant’s address via postal or commercial delivery is presumed
to have been duly delivered to the addressee. While such a
presumption may be overcome under the circumstances of a
particular case, the appellant may not avoid service of a properly
addressed and mailed decision by intentional or negligent conduct
which frustrates actual service.
Here, it is undisputed that the agency mailed the decision to the appellant’s
address of record on April 10, 2020. IAF, Tab 7 at 24-29. We find that the
appellant constructively received the decision 5 days later, on April 15, 2020.
See Williamson v. U.S. Postal Service , 106 M.S.P.R. 502, ¶ 7 (2007) (recognizing
a presumption that documents placed in the mail are received in 5 days). The
appellant’s assertion that he did not receive the decision until July 2020, when it
was resent to his new address, is insufficient to overcome the presumption of
constructive receipt because he did not keep the agency apprised of his current
address and he may not avoid service of a properly addressed and mailed decision
by negligent conduct. IAF, Tab 6 at 4; see 5 C.F.R. § 1201.22(b)(3).
The effective date of the removal was April 25, 2020, ten days after
constructive receipt. IAF, Tab 1 at 4. Therefore, pursuant to 5 C.F.R.
§ 1201.22(b)(1), the appellant’s appeal was due by May 25, 2020, i.e., 30 days3
after the effective date. The appellant’s August 10, 2020 appeal was therefore
untimely by 77 days.
The appellant has not shown good cause for the delay in filing his appeal.
The Board may waive its regulatory filing time limit for good cause shown.
5 C.F.R. § 1201.22(c). To establish good cause for the untimely filing of an
appeal, a party must show that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Alonzo v. Department of the Air
Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, 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).
Though he is proceeding pro se, the appellant’s 77-day delay in filing is not
minimal. See Rosati v. U.S. Postal Service , 91 M.S.P.R. 122, ¶ 7 (finding a
nearly 2-month delay was not minimal), aff’d, 53 F. App’x 95 (Fed. Cir. 2002).
The appellant’s assertion that he did not receive the decision until July 2020 does
not amount to good cause for the reasons stated above. See Little v. U.S. Postal
Service, 124 M.S.P.R. 183, ¶¶ 8-10 (2017) (applying 5 C.F.R. § 1201.22(b)(3) to
find constructive receipt and finding an appellant’s delay in checking his post
office box did not constitute good cause for untimely filing by 1 day). The
appellant also asserts that the agency did not attempt to contact him by phone or
email to relay its removal decision. PFR File, Tab 1 at 4-5. The administrative
judge correctly found that the agency was under no obligation to do so. ID at 4.
Accordingly, we affirm the administrative judge’s decision to dismiss the appeal
as untimely filed. 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 | Jenkins_ClintonDC-0752-20-0794-I-1_Final_Order.pdf | 2024-08-13 | CLINTON JENKINS v. SMITHSONIAN INSTITUTION, MSPB Docket No. DC-0752-20-0794-I-1, August 13, 2024 | DC-0752-20-0794-I-1 | NP |
715 | https://www.mspb.gov/decisions/nonprecedential/Lee_DannySF-3443-22-0600-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANNY LEE,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
SF-3443-22-0600-I-1
DATE: August 13, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Danny Lee , Poway, California, pro se.
Jamie L. Barnhill , Esquire, and Angeline S. Reese , 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 his appeal challenging his nonselection for four positions for lack of
jurisdiction and dismissed his challenge to his 2018 resignation as involuntary 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).
the grounds of adjudicatory efficiency. On petition for review, the appellant
argues that he was deprived of due process and subjected to discrimination when
he was denied a hearing on his appeal and the ability to conduct discovery,
accuses the agency of destroying evidence and withholding information, reargues
that his 2018 resignation decision was involuntary, and states that he has filed
equal employment opportunity complaints and complaints with the Office of
Special Counsel (OSC) in connection with his claims. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to find that the appellant’s involuntary resignation claim is
barred by the doctrine of collateral estoppel instead of on the grounds of
adjudicatory efficiency and to find that the appellant’s challenge to his
nonselection for the Benefit Authorizer position is also barred by collateral
estoppel, we AFFIRM the initial decision .2
2 Regarding the appellant’s assertion on review that he “sought assistance from the
Office of Special Counsel,” it is unclear whether the appellant is referring to OSC
complaints that he has addressed in prior Board appeals or a newly filed OSC
complaint. Petition for Review File, Tab 9 at 7. Nevertheless, to the extent the
appellant may have filed a whistleblower reprisal complaint with OSC, he may file an
IRA appeal with the Board’s regional office in accordance with the Board’s regulations.
See 5 C.F.R. §§ 1209.5, 1209.6. The appellant should carefully review the Board’s
regulations to determine whether any IRA appeal he may file is timely.2
¶2In the initial decision, the administrative judge considered the appellant’s
claim that his July 2018 resignation was involuntary but dismissed that claim for
lack of jurisdiction on the grounds of adjudicatory efficiency, reasoning that the
appellant had filed a prior Board appeal challenging his resignation, that appeal
resulted in a decision finding that the Board lacked jurisdiction over his claim,
and a petition for review of the initial decision in that prior case was then pending
before the Board. Initial Decision (ID) at 9-10; see Lee v. Social Security
Administration, MSPB Docket No. SF-0752-18-0753-I-1 (0753 IAF), Tab 27,
Initial Decision (0753 ID); 0753 Petition for Review File, Tab 1.
¶3As the administrative judge correctly noted, when an appellant files an
appeal that is identical to claims raised in an earlier appeal after the initial
decision in an earlier appeal was issued but before the full Board has acted on the
appellant’s petition for review, it is appropriate to dismiss the subsequent appeal
on the grounds of adjudicatory efficiency. Zgonc v. Department of Defense , 103
M.S.P.R. 666, ¶ 6 (2006), aff’d, 230 F. App’x 967 (Fed. Cir. 2007). Conversely,
dismissal of an appeal as barred by collateral estoppel is appropriate when the
following conditions have been 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 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 in that
action. Kavaliauskas v. Department of the Treasury , 120 M.S.P.R. 509, ¶ 5
(2014); McNeil v. Department of Defense , 100 M.S.P.R. 146 , ¶ 15 (2005).
Collateral estoppel is only appropriate when there is a final judgment in the
previous litigation. Zgonc, 103 M.S.P.R. 666, ¶ 6.
¶4At the time the administrative judge issued his initial decision, the
appellant’s petition for review in his prior appeal was still pending before the
Board. However, the Board now has issued its decision on the petition for review3
in that case, affirming the initial decision dismissing his appeal for lack of
jurisdiction, so the administrative judge’s basis for dismissing the appeal is no
longer valid. See McNeil, 100 M.S.P.R. 146, ¶ 11; Lee v. Social Security
Administration, MSPB Docket No. SF-0752-18-0753-I-1, Final Order (Feb. 23,
2024). Each of the elements for the application of collateral estoppel to the
current appeal have been met here; the appellant’s involuntary resignation claim
in the prior appeal was identical to the claim raised here, the issue of the Board’s
jurisdiction over the appellant’s appeal challenging his resignation as involuntary
was actually litigated in the prior appeal, that determination was necessary to the
resulting judgement in the prior appeal, and the appellant had a full and fair
opportunity to litigate the issue in his prior Board appeal. Under such
circumstances, it is appropriate to dismiss the appellant’s claim challenging his
2018 resignation as involuntary in the instant appeal based on the doctrine of
collateral estoppel rather than on the basis of adjudicatory efficiency, and we
modify the initial decision in the instant appeal accordingly. McNeil,
100 M.S.P.R. 146, ¶ 11.
¶5Regarding the appellant’s remaining argument. – his challenges to his
nonselection for four vacancies announced by the agency – in the initial decision,
the administrative judge determined that the appellant had not sought to invoke
the Board’s jurisdiction over the nonselections as an employment practices claim,
a suitability action, an appeal under the Uniformed Services Employment and
Reemployment Rights Act of 1994 (codified as amended at 38 U.S.C.
§§ 4301-4335), or an appeal under the Veterans Employment Opportunities Act
of 1998. ID at 4-6. Further, addressing whether the appellant’s allegation that
his nonselections were in reprisal for whistleblowing or protected activity under
5 U.S.C. § 2302(b)(8) or (9), the administrative judge acknowledged that in his
pleadings the appellant appeared to have asserted jurisdiction on the theory of a
prohibited personnel practice, including whistleblower reprisal, and potentially
invoked Board jurisdiction over these nonselections as an individual right of4
action (IRA) appeal. ID at 6. He nevertheless concluded that the appellant had
not demonstrated that he exhausted his administrative remedies with OSC or
otherwise indicated that he raised his nonselection claim with OSC. ID at 6-8 &
n.3. Accordingly, he determined that the appellant failed to demonstrate that he
exhausted his administrative remedies with OSC and thus failed to establish
Board jurisdiction over his appeal as an IRA. ID at 8. Consequently, he
concluded that the appellant failed to establish Board jurisdiction over his
nonselection appeal and dismissed that portion of the appeal for lack of
jurisdiction. ID at 8.
¶6We agree with the administrative judge’s findings on this point concerning
the following three vacancy announcements: (1) vacancy announcement
DEU-11543245-22-ROII 070 (Legal Assistant – Hearing Customer Service
Representative), (2) vacancy announcement SCHASN-11560491-22 (Career at
SSA New York Region – Individual with Disabilities), and (3) vacancy
announcement SH -11159892 (Auditor). IAF, Tab 1 at 4, Tab 13 at 15-26, 31-37.
However, for the fourth and final position, vacancy announcement DEU-
11546212-22 ROII 075 (Legal Administrative Specialist – Benefit Authorizer),
the appellant previously challenged his nonselection for that position in a prior
Board appeal. Compare IAF, Tab 1 at 4, Tab 4 at 9, Tab 13 at 1, with Lee v.
Social Security Administration , MSPB Docket No. SF-3443-22-0586-I-1
(0586 IAF), Tab 1 at 5, Tab 15 at 13. In the initial decision in that prior Board
appeal, the administrative judge determined that the appellant failed to establish
that the Board had jurisdiction over his challenge to his nonselection for this
position. 0586 IAF, Tab 21, Initial Decision (0586 ID) at 2-9. That decision
became final when the Board subsequently issued its decision affirming the
administrative judge’s findings on this point. Lee v. Social Security
Administration, MSPB Docket No. SF-3443-22-0586-I-1, Final Order (March 26,
2024).5
¶7As was the case with the appellant’s involuntary resignation claim, all of
the criteria for application of collateral estoppel have been met here: (1) the
appellant’s claim challenging his nonselection for the Benefit Authorizer position
in the prior appeal was identical to the claim raised here; (2) the issue of the
Board’s jurisdiction over the challenge to this nonselection was actually litigated
in the prior appeal; (3) that determination was necessary to the resulting judgment
in the prior appeal; and (4) the appellant had a full and fair opportunity to litigate
the issue in his prior Board appeal. McNeil, 100 M.S.P.R. 146, ¶ 11.
Consequently, application of collateral estoppel to the appellant’s challenge to his
nonselection for the Benefit Authorize position in the instant appeal is
appropriate, and we modify the initial decision to instead dismiss this
nonselection claim as barred by collateral estoppel.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 you7
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be 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 | Lee_DannySF-3443-22-0600-I-1_Final_Order.pdf | 2024-08-13 | DANNY LEE v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. SF-3443-22-0600-I-1, August 13, 2024 | SF-3443-22-0600-I-1 | NP |
716 | https://www.mspb.gov/decisions/nonprecedential/Blevins_Peter_A_NY-0353-20-0047-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PETER A. BLEVINS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
NY-0353-20-0047-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Peter A. Blevins , New York, New York, pro se.
Leslie L. Rowe , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his restoration 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
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 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 basis for finding that the appellant failed to
nonfrivolously allege that his absence was due to a compensable injury, we
AFFIRM the initial decision.
BACKGROUND
The appellant is employed by the agency as a Mail Handler. Initial Appeal
File (IAF), Tab 9 at 6. He stopped working after sustaining an on-the-job injury
for which he filed a claim with the Office of Workers’ Compensation Programs
(OWCP). Id. at 11. OWCP accepted the appellant’s claim. Id.
By letter dated November 30, 2017, the agency offered the appellant a
part-time Modified Mail Handler position that it contended could be performed
within his medical limitations. Id. at 25-26. According to the appellant, he did
not receive the agency’s November 30, 2017 letter. Id. at 19.
By letter dated December 22, 2017, OWCP wrote to the appellant that it
had “been advised that you have refused or failed to report to [the Modified Mail
Handler] position.” Id. at 23. It further informed the appellant that it found the
offer suitable. Id. By letter dated January 25, 2018, the appellant responded to
OWCP that he was unaware of the agency’s offer until he received OWCP’s letter
with the enclosed offer at the end of December 2017. Id. at 19. He further stated
that he was unable to accept the offer until the agency acknowledged his present2
limitations and a review was conducted by an agency District Reasonable
Accommodation Committee (DRAC) of whether the offer was within his medical
restrictions. IAF, Tab 1 at 5, Tab 3 at 6, Tab 9 at 21.
By letter dated January 31, 2018, OWCP informed the appellant that it
found his reasons for refusing to accept the agency’s offer of a modified position
to be unacceptable. IAF, Tab 9 at 17. OWCP stated that the agency advised that
the position remained open to the appellant. Id. On March 14, 2018, the agency
apparently afforded the appellant an additional 15 days to accept the offer, stating
that it would provide equipment to address some of the appellant’s medical
concerns, but he again did not accept it. Id. at 13. By letter dated April 18, 2018,
OWCP informed the appellant that his entitlement to compensation for wage loss
and schedule award would be terminated effective April 19, 2018, for refusal of
suitable work. Id. at 10. It advised him that he remained eligible for medical
benefits, if needed, to treat his on-the-job injury. Id.
According to the appellant, he attempted to accept the agency’s job offer by
letter dated May 9, 2018. IAF, Tab 6 at 6, 21, 24. He asserted that despite this
letter and his subsequent phone calls to the agency, discussions with some agency
officials, and a second letter he sent to the agency later that month, he did not
receive a response to his attempt to accept the offer. Id. at 6. The appellant also
requested that OWCP reconsider its decision to terminate his benefits. IAF, Tab
9 at 8-9. In June 2018, OWCP acknowledged receipt of the appellant’s request.2
Id. at 7.
The appellant asserted that he presented himself at his worksite on July 17,
2018, with the job offer and was permitted to work for 4 hours. IAF, Tab 6 at 7.
However, the following day, after working approximately 1 to 2 hours, the agency
2 In its January 16, 2020 pleading below, the agency asserted without dispute that there
had not yet been a determination on the appellant’s reconsideration request. IAF,
Tab 10 at 8.3
informed the appellant that the job offer had been withdrawn and told him to
leave.3 IAF, Tab 3 at 10, Tab 6 at 7-8.
This restoration appeal followed. IAF, Tab 1 at 3. The administrative
judge advised the appellant of his burden to establish jurisdiction, and both
parties responded. IAF, Tabs 4-6, 10. The administrative judge then issued an
initial decision, dismissing the appeal for lack of jurisdiction. IAF, Tab 11,
Initial Decision (ID) at 1, 5. Specifically, she appeared to find that by rejecting
the job offer, the appellant was no longer entitled to compensation, and thus no
longer met the criteria for restoration. ID at 3-4.
The appellant has filed a petition for review, asserting that he requested a
hearing, referring to the evidence he submitted below regarding the facts of this
case, and indicating that he believes the Board has jurisdiction over his appeal.
Petition for Review (PFR) File, Tab 1 at 3-4, 6. The agency has not filed a
response.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has failed to nonfrivolously allege the Board’s jurisdiction over his
partial restoration claim.
The Federal Employees’ Compensation Act and the implementing
regulations of the Office of Personnel Management (OPM) at 5 C.F.R. part 353
provide, inter alia, that Federal employees who suffer compensable injuries enjoy
certain rights to be restored to their previous or comparable positions. 5 U.S.C.
§ 8151(b); Hamilton v. U.S. Postal Service , 123 M.S.P.R. 404, ¶ 9 (2006);
5 C.F.R. § 353.301. OPM’s regulations require that an agency “make every effort
to restore in the local commuting area” an employee who, more than 1 year after
compensation began, has recovered sufficiently from his injury to return to
limited duty but has not yet fully recovered. Hamilton, 123 M.S.P.R. 404,
3 The record indicates that the appellant remained employed with the agency at least
through this time period, as an August 31, 2019 notification of personnel action
regarding a cost of living adjustment indicated that he was in a leave without pay status.
IAF, Tab 9 at 6. 4
¶¶ 9-10, 15 n.9 (explaining that the restoration rights of individuals who are
partially recovered and physically disqualified generally are the same after 1 year
from the date compensation begins); 5 C.F.R. §§ 353.102, 353.301(c)-(d).
Here, the appellant was injured in 2003, and OWCP accepted his claim in
2004. IAF, Tab 7 at 3-4. Further, he alleged below that he suffered from medical
restrictions preventing him from performing the duties of his former position at
the time the agency made the job offers at issue here. IAF, Tab 6 at 15-17, Tab 7
at 18-19. The administrative judge concluded, in essence, that the appellant was
an employee who had not fully recovered, and whose compensation began more
than 1 year before the job offers at issue here. ID at 2-4. The appellant does not
dispute this contention on review, and we discern no reason to disturb it. PFR
File, Tab 1 at 3-4.
Under these circumstances, an appellant establishes jurisdiction by
nonfrivolously alleging, as relevant here, that he was absent from his position due
to a compensable injury. Hamilton, 123 M.S.P.R. 404, ¶ 12. Although her
findings are unclear, the administrative judge appears to have found that the
appellant was unable to prove that he suffered a compensable injury because
OWCP had ceased paying wage-replacement benefits. ID at 3 (citing 5 U.S.C.
§ 8106(c)(2) (indicating that an individual who refuses an offer of suitable work
“is not entitled to compensation”). The appellant indirectly challenges this
finding, arguing that OWCP has made a “determination of disability” and he “was
considered disabled.” PFR File, Tab 1 at 6. To the extent he is arguing that he
nonfrivolously alleged he suffered a compensable injury, we agree.
An employee’s eligibility for payment of medical expenses for his
on-the-job injury means that the injury is compensable, even if the employee is
not eligible for wage-replacement benefits. 5 U.S.C. §§ 8101(12), 8103, 8106(c)
(2); Young v. U.S. Postal Service , 115 M.S.P.R. 424, ¶¶ 13-14 (2010); see
20 C.F.R. § 10.500(c)-(d) (reflecting that an employee who refuses an offer of
suitable employment is not entitled to wage-replacement benefits, but that5
“[p]ayment of medical benefits is available”). Here, OWCP terminated the
appellant’s wage -replacement benefits in April 2018 due to his failure to accept
what it deemed to be suitable work. IAF, Tab 9 at 10. However, OWCP advised
the appellant that he remained eligible for medical benefits to treat his accepted
condition. Id. Thus, to the extent that she found that the appellant failed to
establish that he suffered from a compensable injury, the administrative judge
erred.
Nonetheless, we find that the administrative judge’s error was not harmful,
and therefore provides no basis to reverse the initial decision. Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (providing that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision). Although the appellant
nonfrivolously alleged that he suffered a compensable injury, he failed to
nonfrivolously allege that, at the time he attempted to accept the job offer in May
and July 2018, his absence was due to that injury. To be entitled to any
restoration rights, an employee must have been absent as a result of a
compensable injury. See Manning v. U.S. Postal Service , 118 M.S.P.R. 313, ¶ 8
(2012) (explaining that an employee who was absent from work because the
agency removed her for cause, rather than for reasons substantially related to her
compensable injury, was not entitled to restoration); Artis v. U.S. Postal Service ,
88 M.S.P.R. 309, 312 (2001) (observing that restoration rights accrue to
employees who were separated or furloughed from a position without time
limitation as a result of a compensable injury); 5 C.F.R. § 353.201(b) (explaining
that OPM’s restoration regulations cover an individual “who was separated or
furloughed from an appointment without time limitation”).
The appellant bears the burden of nonfrivolously alleging that his absence
was due solely to his compensable injury. See Walley v. Department of Veterans
Affairs, 279 F.3d 1010, 1018, 1020 (Fed. Cir. 2002) (finding that an employee
who alleged the agency denied her restoration when it terminated her for absences6
had to prove that those absences were caused solely by her compensable injury),
abrogated by Garcia v. Department of Homeland Security , 437 F.3d 1322 (Fed.
Cir. 2006) (en banc) (finding that the correct jurisdictional burden in constructive
adverse actions appeals is preponderant evidence), superseded by regulation as
stated in Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365, ¶ 10 (2016)
(recognizing that since Garcia was decided, the Board issued a new regulation
that adopted a nonfrivolous allegation standard for restoration appeals); 5 C.F.R.
§ 1201.56(a)(4), (b) (providing that jurisdiction in a restoration appeal is stabled
by nonfrivolous allegations). Here, the appellant cannot meet his burden.
Decisions on the suitability of an offered position are within the exclusive domain
of OWCP, and it is that agency, and not the Board, that possesses the requisite
expertise to evaluate whether a position is suitable in light of an employee’s
particular medical condition. McDonnell v. Department of the Navy , 84 M.S.P.R.
380, ¶ 9 (1999). After April 2018, when OWCP found that the appellant failed to
accept a suitable job offer, his absence was no longer due to his compensable
injury because he had rejected work he could have performed. IAF, Tab 9 at 10;
see Walley, 279 F.3d at 1020 (finding that a petitioner failed to prove her
termination for absences was solely due to her compensable injury when she did
not attribute all of those absences to her compensable injury). Because he cannot
establish jurisdiction for this reason, we find it unnecessary to review whether he
met his jurisdictional burden as to the remaining elements of his claim. See
Hamilton, 123 M.S.P.R. 404, ¶ 12 (setting forth the jurisdictional elements of an
appeal from an alleged denial of restoration following partial recovery).
To the extent that the appellant alleges that the agency denied him
reasonable accommodation for his noncompensable medical conditions, we are
without jurisdiction to review those claims. IAF, Tab 6 at 49; PFR File, Tab 1 at
6. Claims of prohibited discrimination or reprisal cannot serve as an alternative
means of showing that a denial of restoration was arbitrary and capricious.
Cronin, 2022 MSPB 13, ¶¶ 21-22. Thus, the appellant’s claims that the agency7
failed to provide a DRAC review of the offer or otherwise denied him a
reasonable accommodation are not an independent source of jurisdiction. See id.
We acknowledge, as the appellant asserts on review, that the administrative
judge erred in finding that the appellant did not request a hearing. ID at 1; IAF,
Tab 1 at 2. However, any error is harmless. See Panter, 22 M.S.P.R. at 282. An
appellant is entitled to a hearing on the merits of his restoration appeal if he
makes nonfrivolous allegations of Board jurisdiction. Clark v. U.S. Postal
Service, 123 M.S.P.R. 466, ¶ 5 (2016), aff’d per curiam , 679 F. App’x 1006 (Fed.
Cir. 2017), and overruled on other grounds by Cronin , 2022 MSPB 13, ¶ 20 n.11;
5 C.F.R. § 1201.57(a)(4), (b), (c)(4). Because we agree with the administrative
judge that the appellant did not make such allegations, we find that he is not
entitled to a hearing.
On review, the appellant argues that he is entitled to a restoration of his
OWCP benefits. PFR File, Tab 1 at 6. However, the Board lacks jurisdiction to
consider an OWCP decision to terminate benefits. Smith v. U.S. Postal Service ,
81 M.S.P.R. 92, ¶ 8 (1999).4 Accordingly, we discern no basis to find Board
jurisdiction over the instant appeal.
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
4 On review, the appellant raises a number of arguments that are not relevant to the
jurisdictional issue here. For example, he asserts that the agency’s widespread
discriminatory policies have been exposed in another case; the agency did not properly
process his requests for reasonable accommodation; the agency refused to pay him for
time that he worked and refused to restore his health and life insurance; the agency
refused to render timely decisions on his grievances or respond to union requests for
information; and he has additional documentation evidencing that the agency considered
making a different job offer. PFR File, Tab 1 at 4-7. Because these issues are
irrelevant to whether the appellant’s absence was due to his compensable injury, we do
not address them.
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
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although 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 particular9
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 . 10
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 of11
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. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Blevins_Peter_A_NY-0353-20-0047-I-1_Final_Order.pdf | 2024-08-12 | PETER A. BLEVINS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. NY-0353-20-0047-I-1, August 12, 2024 | NY-0353-20-0047-I-1 | NP |
717 | https://www.mspb.gov/decisions/nonprecedential/Woods_Carol_A_AT-0752-20-0767-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROL A. WOODS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
AT-0752-20-0767-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
David Champion , Esquire, Memphis, Tennessee, for the appellant.
Donna G. Marshall , Esquire, Philadelphia, Pennsylvania, 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 withdrawn pursuant to a settlement agreement reached at
the Equal Employment Opportunity Commission (EEOC). On petition for review,
the appellant argues that her appeal should not have been dismissed because the
agency was in breach of the agreement and thus settlement was not effective.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision.2 5 C.F.R. § 1201.113(b).
The appellant does not dispute the validity of the settlement agreement,
which includes a provision requiring the appellant to waive or withdraw her
claims at the Board. Petition for Review (PFR) File, Tab 1 at 1-2; Initial Appeal
File, Tab 5 at 11. Instead, the appellant claims that her appeal should not have
been dismissed because settlement was “not effective” due to the agency’s breach
of the agreement. PFR File, Tab 1 at 1-2. An issue of breach is a matter of
enforcement, and the Board does not have the authority to enforce a settlement
2 The appellant has moved to strike the agency’s response to the petition for review as
untimely filed. Petition for Review (PFR) File, Tab 4. As the appellant correctly
observes, the deadline date for the agency to respond to her petition for review was
October 24, 2020. PFR File, Tab 2 at 1. October 24, 2020, however, was a Saturday,
and, under the Board’s regulations, the pleading was due on the next business day,
Monday, October 26, 2020. 5 C.F.R. § 1201.23. The agency filed its response on that
day. PFR File, Tab 3. Thus, it was timely filed, and the motion to strike is denied.
The appellant requests that she be afforded an opportunity to reply to the agency’s
response, PFR File, Tab 4, but the Office of the Clerk of the Board’s acknowledgment
letter specifically informed her of that right and the time limit for doing so, PFR File,
Tab 2 at 1. Thus, we discern no basis to grant her an additional opportunity and that
request is also denied. 2
agreement reached outside of a Board proceeding. McGriff v. Department of the
Navy, 118 M.S.P.R. 89, ¶ 20 (2012). Accordingly, as a valid settlement
agreement existed that required the appellant to withdraw her Board appeal, the
appellant’s appeal was properly dismissed as withdrawn.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
3 The proper venue for the appellant to litigate her allegations of breach is at the EEOC
because this is where the agreement was reached.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Woods_Carol_A_AT-0752-20-0767-I-1_Final_Order.pdf | 2024-08-12 | CAROL A. WOODS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. AT-0752-20-0767-I-1, August 12, 2024 | AT-0752-20-0767-I-1 | NP |
718 | https://www.mspb.gov/decisions/nonprecedential/Salcedo_VidalaAT-0752-18-0618-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VIDALA SALCEDO,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
AT-0752-18-0618-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Vidala Salcedo , Margate, Florida, pro se.
Katharine Field Connell , 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.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary retirement appeal for lack of jurisdiction. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant filed the instant appeal, alleging that her retirement was
involuntary because she was subject to disparate treatment based on disability,
national origin, race, and reprisal for prior activity protected under Federal
anti-discrimination statutes. Initial Appeal File (IAF), Tab 1 at 4, 23. On
August 20, 2018, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction. IAF, Tab 11, Initial Decision (ID) at 1. The
initial decision stated it would become final on September 24, 2018, unless a
petition for review was filed by that date. ID at 6.
The appellant filed an untimely petition for review on October 26, 2018,
and a supplement to her petition for review on October 30, 2018, wherein she
requests that the Board excuse her late filing. Petition for Review (PFR) File,
Tabs 1-2. In a letter acknowledging the appellant’s filings, the Office of the
Clerk of the Board informed the appellant that her petition for review appeared to
be untimely and that she could file a motion with the Board to accept her petition
as timely or to waive the time limit for good cause. PFR File, Tab 3 at 1-2. The
appellant filed a motion to waive her untimeliness in response. PFR File, Tab 4.
The agency has filed a response urging, as relevant here, that the petition for
review be dismissed as untimely filed. PFR File, Tab 6 at 4, 11-14.
DISCUSSION OF ARGUMENTS ON REVIEW
To be timely, a petition for review must be filed within 35 days of the date
of the initial decision’s issuance or, if the appellant shows that the initial decision
was received more than 5 days after the date of issuance, within 30 days after the
date she received the initial decision. 5 C.F.R. § 1201.114(e). As the party filing
the petition for review, the appellant bears the burden of proof with regard to
timeliness, which she must establish by preponderant evidence. Perry v. Office of
Personnel Management , 111 M.S.P.R. 337, ¶ 5 (2009); 5 C.F.R. § 1201.114(e).
The Board will excuse the late filing of a petition for review on a showing of2
good cause for the delay. 5 C.F.R. § 1201.114(g). To establish good cause for an
untimely filing, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Alonzo v. Department of
the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant
has shown good cause, the Board will consider the length of the delay, the
reasonableness of her excuse and her showing of due diligence, whether she is
proceeding pro se, and whether she has presented evidence of the existence of
circumstances beyond her control that affected her ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to her inability to timely file her petition. Moorman v. Department of
the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d per curiam , 79 F.3d 1167 (Fed.
Cir. 1996) (Table).
Here, the administrative judge informed the appellant that the initial
decision had a September 24, 2018 finality date, unless either party filed a
petition for review by that date. ID at 6. The certificate of service reflects that,
on August 20, 2018, notice of the initial decision was sent by email to the
appellant, who was an e-filer. IAF, Tab 8 at 2, Tab 12. The appellant indicates
that she received the initial decision on October 15, 2018. PFR File, Tab 1 at 3,
Tab 2 at 9. However, as an e-filer, she is deemed to have received the initial
decision on the date of electronic submission, August 20, 2018. ID at 1; see
Palermo v. Department of the Navy , 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R.
§ 1201.14(m)(2) (2018). Accordingly, she had until September 24, 2018, the 35th
day following the issuance of the August 20, 2018 initial decision, to file a
petition for review. ID at 6. The appellant electronically filed her petition for
review on October 26, 2018, thirty-two days past the filing deadline. PFR File,
Tab 1; Parker v. Office of Personnel Management , 80 M.S.P.R. 277, ¶ 3 (1998)
(noting that a 1 -month filing delay in filing a petition for review is significant).
Thus, we find her petition for review was untimely filed and, despite her pro se
status, the delay was not minimal. See Tyrrell v. Department of Veterans Affairs ,3
98 M.S.P.R. 153, ¶ 7 (2005) (finding that, notwithstanding an appellant’s pro se
status, his 40-day delay in filing his petition for review was not minimal).
In the appellant’s supplement to her petition for review and her timeliness
motion, she asserts that her petition for review was untimely filed due to
technical difficulties with e-Appeal and due to medical treatment for a “slip and
fall” accident on August 28, 2018. PFR File, Tab 2 at 9, Tab 4 at 4-5. Regarding
the technical difficulties, the appellant alleges that she did not check her email
until late September 2018, after the initial decision had become final, and when
she attempted to access e-Appeal, she discovered she was locked out. PFR File,
Tab 4 at 4-5. Again, the record reflects that she was notified by email at her
address of record of the initial decision’s issuance the day of its electronic
submission, August 20, 2018. ID at 6. Further, as an e -filer, she was responsible
for monitoring case activity at e -Appeal to ensure that she received all
case-related documents. Rivera v. Social Security Administration , 111 M.S.P.R.
581, ¶ 5 (2009); 5 C.F.R. § 1201.14(j)(3) (2018). Therefore, even if the appellant
did not receive the initial decision until October 15, 2018, as she asserts, the
delay was attributable to her own lack of due diligence in failing to monitor her
case activity.
The appellant also alleges that she was unable to timely file her petition for
review due to a slip and fall accident on August 28, 2018, which required her to
attend therapy three times per week. PFR File, Tab 4 at 4-5. In support, she
submits two medical reports dated October 10, 2018, which detail the results of
the magnetic resonance imaging (MRI) of her spine that day. Id. at 7-11. To
establish that an untimely filing was the result of an illness, the party must:
(1) identify the time period during which she suffered from the illness; (2) submit
medical evidence showing that she suffered from the alleged illness during that
time period; and (3) explain how the illness prevented her from timely filing her
appeal or a request for an extension of time. Lacy v. Department of the Navy ,
78 M.S.P.R. 434, 437 (1998). 4
While the appellant states she had a slip and fall accident on August 28,
2018, she does not specifically explain why this treatment or her condition
rendered her unable to file her petition for review or a request for an extension of
time during the applicable time period. The medical evidence she has submitted
shows that as of October 10, 2018, she suffered from multiple disc herniations, as
well as back sprain and strain and other back conditions. PFR File, Tab 4 at 7-11.
However, the medical evidence she provided does not show how her back
conditions impacted her ability to perform daily activities or otherwise prevented
her from filing her petition for review. Id. The fact that the appellant was
receiving treatment and attending physical therapy three times a week is not good
cause for her delay. PFR File, Tab 4 at 4; Stibbe v. Government Printing Office ,
57 M.S.P.R. 5, 6-7 (1993) (finding that the demands of schooling and a physical
therapy program did not constitute good cause for untimely filing a petition for
review). Thus, the appellant has not demonstrated that her medical condition
prevented her from timely filing her petition for review. See Ortiz v. Department
of Justice, 103 M.S.P.R. 621, ¶ 23 (2006) (finding that a letter by the appellant’s
physician that the appellant suffered from depression and other conditions was
insufficient to justify the entire 3-year delay in filing a petition for review when
the letter failed to state that the appellant’s severe condition was so severe that he
could not file a petition or seek help to do so).In sum, we find that the appellant
has not shown good cause for the untimely filing of her petition for review.2
Accordingly, we dismiss the petition for review as untimely filed. This is the
final decision of the Merit Systems Protection Board regarding the timeliness of
the petition for review. The initial decision remains the final decision of the
Board regarding the appellant’s involuntary retirement appeal.
2 The appellant’s arguments as to the merits of her appeal do not establish good cause
for the untimely filing of her petition for review. PFR File, Tab 1 at 4-12; see Wright v.
Department of the Treasury , 113 M.S.P.R. 124, ¶ 7 (2010) (finding that an appellant’s
arguments regarding the merits of her case did not establish good cause for her untimely
filed petition for review).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).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 on7
race, color, religion, sex, 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) or8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If
so, and your judicial petition for review “raises no challenge to the Board’s disposition
of allegations of a prohibited personnel practice described in section 2302(b) other than
practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review
either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for review
within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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 | Salcedo_VidalaAT-0752-18-0618-I-1_Final_Order.pdf | 2024-08-12 | VIDALA SALCEDO v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. AT-0752-18-0618-I-1, August 12, 2024 | AT-0752-18-0618-I-1 | NP |
719 | https://www.mspb.gov/decisions/nonprecedential/Picciano_JosephNY-0831-20-0004-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH PICCIANO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
NY-0831-20-0004-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Norman J. Chirco , Esquire, Auburn, New York, for the appellant.
Tanisha Elliott Evans and Karen Silveira , 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)
granting his former spouse a court-ordered survivor annuity under the Civil
Service Retirement System (CSRS). On petition for review, the appellant restates
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).
his argument that the language in the court order granting his former spouse a
survivor annuity was the result of a “clerical error,” and that a March 7, 2016
post-retirement modification to the order should be given effect. Petition for
Review (PFR) File, Tab 1 at 5-7. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; 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.
Regarding the appellant’s argument that the March 2016 order striking the
survivor annuity provision of the 2001 Domestic Relations Order (DRO) merely
corrected an inadvertent error or mistake in the original DRO, that argument is
without merit. PFR File, Tab 1 at 5-7. Because the appellant retired from the
Federal service prior to correcting the DRO, OPM is barred by statute from
processing the amended DRO, and the statute contains no provision for
amendment due to an inadvertent error or mistake. See 5 U.S.C. § 8341(h)(4)
(noting that a modification of any court-approved property settlement agreement
dealing with a survivor annuity shall not be effective if the modification is made
after the employee dies or retires); cf. James v. Office of Personnel Management ,
372 F.3d 1365, 1369-70 (Fed. Cir. 2004) (declining to invalidate an election of a
survivor annuity for a new spouse based on mutual mistake, in part to avoid the
uncertainty that could result from allowing introduction of parol evidence2
contradicting the actual election). Additionally, as the administrative judge
observed, OPM advised the appellant as early as 2003 that it intended to honor
his former spouse’s court-ordered survivor annuity award, providing him with
ample time to seek an order correcting this provision prior to his 2009 retirement.
See Initial Appeal File (IAF), Tab 18, Initial Decision at 3; IAF, Tab 11 at 16.
Although we are sympathetic to the appellant’s claim that the award was made in
error, equitable considerations cannot estop OPM from providing benefits that are
authorized by statute. See Office of Personnel Management v. Richmond ,
496 U.S. 414, 416, 419 (1990). 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.3
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain4
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 5
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Picciano_JosephNY-0831-20-0004-I-1_Final_Order.pdf | 2024-08-12 | JOSEPH PICCIANO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. NY-0831-20-0004-I-1, August 12, 2024 | NY-0831-20-0004-I-1 | NP |
720 | https://www.mspb.gov/decisions/nonprecedential/Riley_Elizabeth_M_PH-0731-22-0331-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH MARY RILEY,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
PH-0731-22-0331-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Issacs , Esquire, Atlanta, Georgia, for the appellant.
Tahseen F. Ali , 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
affirmed the agency’s suitability determination. For the reasons set forth below,
the appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant, proceeding pro se, appealed the agency’s decision finding
her unsuitable for Federal employment and canceling any eligibilities for
reinstatement and to certain appointments, debarring her from appointment to
certain positions for 3 years, and directing her employing agency to separate her.
Initial Appeal File (IAF), Tab 1 at 3, 5, Tab 4 at 16-18. She registered as
an e-filer. IAF, Tab 1 at 2. On December 14, 2022, the administrative judge
issued an initial decision affirming the agency’s determination. IAF, Tab 13,
Initial Decision (ID) at 1-2, 7. On January 4, 2023, the appellant filed a
designation of representative, reflecting that she had retained an attorney. IAF,
Tab 15.2
The appellant’s attorney filed a petition for review on January 23, 2023.
Petition for Review (PFR) File, Tab 1. After the Clerk of the Board issued
an acknowledgment letter indicating that the petition was untimely filed, the
appellant’s attorney responded, acknowledging that the petition was untimely, but
stating that the delay was due to her illness, i.e., viral gastroenteritis, her delayed
access to the Board’s e-Appeal system, and a miscalculation in the deadline to
submit the petition for review. PFR File, Tab 2 at 1-2, Tab 3 at 2-3. She also
submitted a medical note concerning her illness. Id. at 4. The agency has
responded, arguing that the petition for review should be dismissed as untimely
or, in the alternative, denied on substantive grounds. PFR File, Tab 4.
The petition for review was untimely filed.
A petition for review of an initial decision must be filed within 35 days 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. 5 C.F.R. § 1201.114(e). Here, the
2 This attorney represented the appellant between January 4 and October 31, 2023, and
thus filed the appellant’s petition for review and submission regarding timeliness
discussed herein. 2
administrative judge issued the initial decision on December 14, 2022. ID at 1.
It was electronically served on the parties on the same day. IAF, Tab 14. The
administrative judge informed the parties that the initial decision would become
the Board’s final decision on January 18, 2023, in the absence of a petition for
review. ID at 7. The appellant’s attorney filed the petition for review on
January 23, 2023. PFR File, Tab 1. In the petition for review, the attorney
declared, under penalty of perjury, that the appellant received the initial decision
on December 24, 2022. PFR File, Tab 1 at 3-4.
Documents served electronically on registered e-filers are deemed to have
been received on the day of electronic submission. 5 C.F.R. § 1201.14(m)(2)
(2022). Although the appellant’s attorney declared that the appellant received the
initial decision on December 24, 2022, PFR File, Tab 1 at 3-4, the certificate of
service for the decision shows that the appellant was served electronically on
December 14, 2022, IAF, Tab 14. Further, the statements of a party’s
representative in a pleading do not constitute evidence. Hutchinson v.
Department of Labor , 91 M.S.P.R. 31, ¶ 5 (2001). Although the appellant’s
attorney’s statement was sworn, she claimed to have “personal knowledge” of the
appellant’s receipt date without explaining the basis of her knowledge. PFR File,
Tab 1 at 3. Given that she was not the appellant’s designated representative as of
December 14, 2022, we discern no basis to credit her claim. See generally
Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83-84 (1981) (discussing
factors to consider in deciding whether to credit hearsay evidence). As
an electronic filer, the appellant is deemed to have received the initial decision on
December 14, 2022. See, e.g., Morton v. Department of Veterans Affairs ,
113 M.S.P.R. 365, ¶¶ 2-3, 6-7 (2010); Lima v. Department of the Air Force ,
101 M.S.P.R. 64, ¶ 5 (2006).
On review, the appellant’s attorney states that she received the initial
decision from the appellant on December 27, 2022, and counted the deadline to
file from that date. PFR File, Tab 3 at 3. The timeline for filing the petition for3
review begins to run from either the appellant’s or her representative’s receipt of
the initial decision, whichever comes first. 5 C.F.R. § 1201.114(e); see Lima v.
Department of the Air Force , 101 M.S.P.R. 64, ¶ 5 (2006) (deeming
an appellant’s representative to have received an initial decision on the date of
electronic submission and imputing that service date to the appellant). The initial
decision so advised the appellant. ID at 7. As just discussed, the Board deems
the appellant to have received the initial decision on December 14, 2022.
Therefore, the deadline for filing the petition for review began to run on that date.
The last day fell on January 18, 2023, 35 days later. The petition for review,
which was filed on January 23, 2023, was untimely by 5 days.
The appellant did not provide good cause for the delay in filing the petition
for review.
In her response to the Clerk of the Board’s acknowledgment letter, alerting
the appellant’s attorney to the timeliness issue, she has asked that the Board
waive the deadline for the filing of the petition of review for good cause.
PFR File, Tab 3 at 2. In her sworn statement, the appellant’s attorney indicates
that she received notice of the initial decision on December 27, 2022. Id. at 3.
She continues that, though she submitted notice of her representation of the
appellant to the Board on January 4, 2023, she was not given access to e-Appeal
until January 17, 2023, which she states significantly limited her time “to review
previously submitted documents.” Id. at 2. She explains that she failed to ask the
Board for an extension of time to file the petition because she erroneously
calculated its due date from the date she received the initial decision, not from the
date the appellant received it. Id. at 3.
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. Rivera v. Social Security
Administration, 111 M.S.P.R. 581, ¶ 4 (2009); 5 C.F.R. §§ 1201.113(d),
1201.114(g). To establish good cause for an untimely filing, a party must show
that she exercised due diligence or ordinary prudence under the particular4
circumstances of the case. Alonzo v. Department of the Air Force , 4 M.S.P.R.
180, 184 (1980). To determine whether an appellant has shown good cause, the
Board will consider the length of the delay, the reasonableness of her excuse and
her showing of due diligence, whether she is proceeding pro se, and whether
she has presented evidence of the existence of circumstances beyond her control
that affected her ability to comply with the time limits or of unavoidable casualty
or misfortune which similarly shows a causal relationship to her inability to
timely file her petition. Moorman v. Department of the Army , 68 M.S.P.R. 60,
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
Though a 5-day delay is not lengthy, in the interests of judicial efficiency
and fairness, the Board will not waive its timeliness requirements in the absence
of good cause, no matter how minimal the delay. Fitzgerald v. Department of
Veterans Affairs , 45 M.S.P.R. 222, 223 (1990); see Barr v. Office of Personnel
Management, 50 M.S.P.R. 66, 67-68 (1991) (declining to waive a 1-day delay in
refiling a petition for review when the appellant received the refiling notice from
the Clerk at least 3 days prior to the deadline), aff’d, 975 F.2d 868 (Fed. Cir.
1992) (Table); Willis v. United States Postal Service , 43 M.S.P.R. 439, 440-42
(finding an appellant’s failure to follow straightforward directions in an initial
decision showed that he did not exercise due diligence or ordinary prudence when
he filed his petition for review 4 days late), aff’d per curiam , 907 F.2d 158 (Fed.
Cir. 1990) (Table).
The brevity of the delay notwithstanding, the appellant has not shown good
cause for her failure to meet the filing deadline. As previously discussed, the
appellant is deemed to have received the initial decision on the same day it was
issued. Officially, the appellant was pro se at the time, but she obtained
an attorney no later than January 4, 2023, when the representative submitted the
endorsed designation of representative. IAF, Tab 15; PFR File, 3 at 2. The initial
decision clearly states that the filing deadline was January 18, 2023, 14 days after
the appellant designated her attorney. ID at 7. The Board has long held that an5
appellant is responsible for the errors of her chosen representative. Sofio v.
Internal Revenue Service , 7 M.S.P.R. 667, 670 (1981). Further, the appellant
remains personally liable for the timely prosecution of her appeal whether or
when she is represented. Brady v. Department of Labor , 57 M.S.P.R. 341, 346
(1993), aff’d per curiam , 26 F.3d 138 (Fed. Cir. 1994) (Table). Therefore, we
decline to excuse the 5-day delay based on the failure of the appellant’s attorney
to understand the deadline as clearly stated in the initial decision. ID at 7.
The appellant’s attorney explains on review that from January 8 to 17,
2023, she “was suffering from a virus that left [her] in bed for the entire week.”
PFR File, Tab 3 at 2. On January 14, 2023, she was diagnosed with viral
gastroenteritis by her physician who advised her “to continue to rest and return to
work the following week.” Id.
To establish that an untimely filing resulted from illness, the party must, as
relevant here, explain how the illness prevented her from timely filing her appeal
or a request for an extension of time. Lacy v. Department of the Navy ,
78 M.S.P.R. 434, 437 (1998). The appellant’s attorney has not claimed that her
illness prevented her from doing either. Instead, she identifies the sole cause of
her failure to timely request an extension as her error in calculating the deadline,
and states that if she had “realized [her] error, [she] would have asked the Board
for an extension.” PFR File, Tab 3 at 3. Further, the attorney’s ability to access
e-Appeal on January 17, 2023, is inconsistent with her claim that she was unable
to work at the time. In sum, the appellant has not shown that she exercised due
diligence or ordinary prudence under the circumstances of this case.
We therefore dismiss the petition for review as untimely filed by 5 days
without a showing of good cause for the delay. This is the final decision of the
Merit Systems Protection Board regarding the timeliness of the petition for
review. The initial decision remains the final decision of the Board regarding the
removal appeal.6
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.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.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. 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 | Riley_Elizabeth_M_PH-0731-22-0331-I-1_Final_Order.pdf | 2024-08-12 | ELIZABETH MARY RILEY v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0731-22-0331-I-1, August 12, 2024 | PH-0731-22-0331-I-1 | NP |
721 | https://www.mspb.gov/decisions/nonprecedential/Brackins_El_RandyAT-4324-23-0409-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDY BRACKINS EL,
Appellant,
v.
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION,
Agency.DOCKET NUMBER
AT-4324-23-0409-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kimberly A. Ford , Esquire, Huntsville, Alabama, for the appellant.
Kristin Pollard Kiel , Esquire, Marshall Space Flight Center, Alabama, for
the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his Uniformed Services Employment and Reemployment Rights Act of
1994 appeal for lack of jurisdiction. 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2On petition for review, the appellant largely argues the merits of his claim,
but does not address the jurisdictional issue. Petition for Review (PFR) File,
Tab 1 at 4-12. The appellant also submits several documents for consideration
for the first time on review. Id. at 13-61; Tab 2 at 4-662. The Board generally
will not consider evidence or argument 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; see Avansino v.
U.S. Postal Service , 3 M.S.P.R. 211, 214 (1980). The appellant has not explained
why he was unable to submit such evidence despite his due diligence prior to
when the record before the administrative judge closed. Nevertheless, even if we
were to consider such evidence, we find that it does not warrant a different
outcome than that of the initial decision. See Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980) (finding 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). The
appellant’s documents, which are pleadings from an appeal before the Equal
Employment Opportunity Commission, are immaterial to the dispositive2
jurisdictional issue and provide no reason to disturb the initial decision. We
therefore decline to consider them further.
¶3Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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 | Brackins_El_RandyAT-4324-23-0409-I-1_Final_Order.pdf | 2024-08-12 | RANDY BRACKINS EL v. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, MSPB Docket No. AT-4324-23-0409-I-1, August 12, 2024 | AT-4324-23-0409-I-1 | NP |
722 | https://www.mspb.gov/decisions/nonprecedential/Defrank_Daniel_M_AT-0752-23-0060-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DANIEL M. DEFRANK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-23-0060-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel M. Defrank , Orlando, Florida, pro se.
Caroline E. Johnson and RaTanya Fernandez , Saint Petersburg, 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
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of an alleged involuntary retirement for lack of jurisdiction.
On petition for review, the appellant requests that “discredited evidence” harming
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
his reputation be expunged from the record, but his petition does not address the
jurisdictional issue. 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 | Defrank_Daniel_M_AT-0752-23-0060-I-1_Final_Order.pdf | 2024-08-12 | DANIEL M. DEFRANK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-23-0060-I-1, August 12, 2024 | AT-0752-23-0060-I-1 | NP |
723 | https://www.mspb.gov/decisions/nonprecedential/McLoud_AnastasiaAT-315H-23-0467-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANASTASIA MCLOUD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-315H-23-0467-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Anastasia McLoud , Homestead, Florida, pro se.
Joved Gonzalez-Rivera , Mayaguez, Puerto Rico, for the agency.
Tammy L. Kennedy , Esquire, and RaTanya Fernandez , Esquire,
St. Petersburg, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her termination appeal for lack of jurisdiction. On petition for review,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 asserts that she wanted to but never had the opportunity to speak
with the administrative judge. Petition for Review File, Tab 1 at 3. The appellant
states that she sent in all her evidence, including a police report. Id. at 4.
Finally, she suggests that her termination was the product of disability
discrimination. Id. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | McLoud_AnastasiaAT-315H-23-0467-I-1_Final_Order.pdf | 2024-08-12 | ANASTASIA MCLOUD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-315H-23-0467-I-1, August 12, 2024 | AT-315H-23-0467-I-1 | NP |
724 | https://www.mspb.gov/decisions/nonprecedential/Nelson_Micheal_A_SF-315H-18-0476-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHEAL A. NELSON,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
SF-315H-18-0476-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Travis Nelson , Portland, Oregon, for the appellant.
Chelsea Miller , Portland, Oregon, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal of his termination during his trial period for lack of
jurisdiction. For the reasons set forth below, the appellant’s petition for review is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
BACKGROUND
The agency appointed the appellant, a preference-eligible veteran, to a
WG-2 Housekeeping Aide position, subject to a trial period, beginning
December 11, 2016. Initial Appeal File (IAF), Tab 1 at 1, Tab 9 at 8.
It terminated the appellant effective December 8, 2017, during this period.
IAF, Tab 9 at 5-7, 9. The appellant filed an April, 17, 2018 appeal of his
termination. IAF, Tab 1. Because he had filed his appeal 100 days late, the
administrative judge ordered him to file evidence and argument concerning the
timeliness of his appeal. IAF, Tab 3. The appellant did not respond.
The administrative judge did not address the timeliness of the appellant’s
appeal in his initial decision. IAF, Tab 10, Initial Decision (ID). He instead
dismissed the appeal for lack of jurisdiction, finding that the agency terminated
the appellant during his trial period for post-appointment reasons, and that he had
not alleged that the agency did so based on partisan political reasons or marital
status. ID at 3. The administrative judge also found that the appellant, who was
a preference-eligible employee in the excepted service, was not an “employee”
with the right to appeal an adverse action to the Board because he did not allege
his appointment was pending conversion to the competitive service, and he had
less than 2 years of current continuous service in the same or similar positions.
Id.; 5 U.S.C. § 7511(a)(1)(C).
The appellant filed a petition for review on June 30, 2018. Petition for
Review (PFR) File, Tab 1. The Clerk of the Board issued an acknowledgment
letter informing the appellant that his petition appeared to be untimely and giving
him notice of the Board’s requirements for him to demonstrate that his petition
was either timely filed or that good cause exists to waive the time limit.
PFR File, Tab 2 at 1-3. The Clerk provided the appellant with a form for the2
required motion. Id. at 7. The appellant filed a Motion to Accept Filing as
Timely and/or Ask the Board to Waive or Set Aside the Time Limit, using the
form provided, on which he repeated the arguments set forth in his petition for
review. PFR File, Tab 1 at 2, Tab 3 at 2, 4. The agency did not respond.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant bears the burden of proof with regard to timeliness, which he
must prove by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B). A petition
for review must be filed within 35 days after the date of issuance of the initial
decision or, if the party shows that he received the initial decision more than
5 days after it was issued, within 30 days of his receipt. Williams v. Office of
Personnel Management , 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R. § 1201.114(e).
The Board will waive the filing time limit for a petition for review only upon a
showing of good cause for the delay. Williams, 109 M.S.P.R. 237, ¶ 7; see
Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980) (discussing
the good cause standard in the context of an untimely filed initial appeal).
The record shows that the administrative judge issued his initial decision
on May 22, 2018. ID at 1. The decision became final 35 days later, on
June 26, 2018, when neither party filed a petition for review. ID at 5; 5 C.F.R.
§ 1201.113. The appellant filed his petition for review on June 30, 2018, making
it 4 days late. PFR File, Tab 1.
To establish good cause for an untimely filing, a party must show that he
exercised due diligence or ordinary prudence under the circumstances.
Williams, 109 M.S.P.R. 237, ¶ 7. 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 limits or of unavoidable3
casualty or misfortune which similarly shows a causal relationship to his ability
to timely file his petition. Id.
As noted above, in the affidavit that the appellant submitted in response to
the Clerk’s letter, he simply repeats the information in his petition for review.
PFR File, Tab 1 at 2, Tab 3 at 2, 4. He alleges that he was unable to gain access
to his online account due to login issues. PFR File, Tab 1 at 2, Tab 3 at 2, 4.
He states that his representative “ha[d] the wrong address listed.” PFR File,
Tab 1 at 2, Tab 3 at 2, 4. He claims financial hardship and discrimination, and
asserts that his suffering is increasing his post-traumatic stress disorder (PTSD).
PFR File, Tab 1 at 2, Tab 3 at 2, 4.
Both the appellant and his representative registered as e-filers during the
adjudication of the initial appeal. IAF, Tab 1 at 2-3. E-filers consent to accept
electronic service of Board documents. 5 C.F.R. § 1201.14(e)(1) (2018). As
e-filers, the appellant and his representative are deemed to have received the
initial decision on the date of electronic submission, May 22, 2018. Id.; Palermo
v. Department of the Navy , 120 M.S.P.R. 694, ¶ 3 (2014). The certificate of
service for the initial decision reflects that the appellant and his representative
were both electronically served with the initial decision. IAF, Tab 11. Thus, the
new postal address that the appellant provided for his representative is not
relevant to the timeliness of his petition for review. PFR File, Tab 3 at 5. While
the appellant claims that he could not access e -Appeal to file his petition, he has
not explained why he could not have timely filed his petition by alternate means.
See 5 C.F.R. § 1201.14(f) (2018) (“A party or representative who has registered
as an e-filer may file any pleading by non -electronic means, i.e., via postal mail,
fax, or personal or commercial delivery.”). Although, as noted above, he cited
his financial hardship, alleged discrimination, and PTSD in his timeliness motion,
he did not assert that these factors interfered with his ability to file his petition
for review, despite the instructions on how to establish such a claim included on
the form provided to him by the Clerk of the Board. PFR File, Tab 2 at 7, Tab 34
at 2; see Raleigh v. Department of Veterans Affairs , 110 M.S.P.R. 7, ¶ 9 (2008),
aff’d per curiam, 328 F. App’x 639 (Fed. Cir. 2009).
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding its dismissal for lack of jurisdiction of the appellant’s appeal of
his December 8, 2017 termination during his trial period.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although 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
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
court within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file6
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 7
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Nelson_Micheal_A_SF-315H-18-0476-I-1_Final_Order.pdf | 2024-08-12 | MICHEAL A. NELSON v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. SF-315H-18-0476-I-1, August 12, 2024 | SF-315H-18-0476-I-1 | NP |
725 | https://www.mspb.gov/decisions/nonprecedential/Rzayev_Fakhraddin_F_SF-315H-23-0344-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FAKHRADDIN RZAYEV,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-315H-23-0344-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Fakhraddin Rzayev , San Diego, California, pro se.
Javon Coatie , Andrew Greene , and Amee Patel , 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.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his termination appeal for lack of jurisdiction. On petition for review,
the appellant reiterates his arguments from below, again contending that 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).
waiver of chapter 75 appeal rights is not enforceable. 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. 4
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 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 | Rzayev_Fakhraddin_F_SF-315H-23-0344-I-1_Final_Order.pdf | 2024-08-12 | FAKHRADDIN RZAYEV v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-315H-23-0344-I-1, August 12, 2024 | SF-315H-23-0344-I-1 | NP |
726 | https://www.mspb.gov/decisions/nonprecedential/Doe_JohnDE-0752-20-0416-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN DOE,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DE-0752-20-0416-I-1
DATE: August 12, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Thomas F. Muther , Denver, Colorado, for the appellant.
Christiann C. Burek and Ashley Geisendorfer , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The agency has filed a petition for review of the initial decision, which
reversed the appellant’s removal for conduct unbecoming a Federal employee,
finding that the appellant rebutted the presumption of nexus. For the reasons
discussed below, we GRANT the agency’s petition for review and 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 regarding the charge and the application of the
rebuttal presumption of nexus. We VACATE the administrative judge’s finding
that the appellant rebutted that presumption, and SUSTAIN the removal action,
finding that the appellant failed to rebut the presumption of nexus and that the
agency considered all relevant factors and did not abuse its managerial discretion
in removing the appellant.
BACKGROUND
The following facts are not in dispute. The appellant was employed as a
ZP-5 Supervisory Research Chemist with the National Oceanic and Atmospheric
Administration (NOAA).2 Initial Appeal File (IAF), Tab 7 at 21. On
September 9, 2019, the appellant, while at home, put his hand down his minor
daughter’s shirt and touched her breast. Then, when his daughter went to say
good night to him, the appellant grabbed her shirt and pulled it up above her
breasts. Id. at 93. As a result of his actions, the appellant was arrested and
charged with sexual assault on a child-position of trust. Id. at 87. As part of an
agreement with the prosecutor, the appellant eventually pled guilty to child abuse
with a stipulated sexual factual basis, a class 2 misdemeanor, and was sentenced
to 5 years of sex offender probation, which included sex offense specific
treatment, abstinence from alcohol and drugs, certain restrictions as to contact
with minors, and registering with Colorado’s misdemeanor sex offender registry.3
Id. at 56, 63-64.
Effective September 17, 2020, the agency removed the appellant for
conduct unbecoming a Federal employee based on one specification based upon
2 The appellant’s position was the equivalent of a GS-15 on the general schedule pay
scale. Department of Commerce Special Pay Tables , available at
https://www.commerce.gov/sites/default/files/2021-01/CAPS%20Special%20Pay%20
Chart%202021.pdf .
3 Colorado’s misdemeanor sex offender registry is not available on the internet but can
be requested by mail. IAF, Tab 7 at 36; see also Colorado Convicted Sex Offender
Search, https://apps.colorado.gov/apps/dps/sor/ (last visited Aug. 12, 2024).2
the same events, alleging that he unlawfully and with criminal negligence caused
injury or unreasonably placed himself in a position that posed a threat of injury to
the life or health of a child, which resulted in the injury of that child. Id.
at 21-30, 51-54. The appellant filed a Board appeal alleging that his removal did
not promote the efficiency of the service. IAF, Tab 1 at 4. After holding a
hearing, the administrative judge issued an initial decision sustaining the charge,
but reversing the removal action, finding that the appellant had rebutted the
presumption of nexus and the agency failed to prove by preponderant evidence
that removal would promote the efficiency of the service. IAF, Tab 27, Initial
Decision (ID).
The agency has filed a petition for review of the initial decision, arguing
that the administrative judge erred in finding a lack of nexus between the
appellant’s off-duty misconduct and the efficiency of the service.4 Petition for
Review (PFR) File, Tab 1. The appellant responded in opposition to the agency’s
petition for review, to which the agency replied. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
As we noted, the facts leading to the appellant’s removal are not in dispute,
and because the record supports the administrative judge’s finding to sustain the
charged misconduct, we see no reason to disturb it. ID at 8; Hearing Recording
(HR) (testimony of the appellant); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98,
106 (1997); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987). Therefore, the only issue presented on review is
whether there is nexus between the appellant’s off-duty misconduct and the
efficiency of the service.
4 In her initial decision, the administrative judge ordered the agency to provide the
appellant with interim relief if either party filed a petition for review. ID at 14-15. In
its petition for review, the agency certified that it provided the appellant with interim
relief and included documentation in support of the certification. Petition for Review
File, Tab 1 at 4, 32. 3
The nexus requirement, for purposes of whether an agency has shown that
its action promotes the efficiency of the service, means there must be a clear and
direct relationship between the articulated grounds for an adverse action and
either the employee’s ability to accomplish his or her duties satisfactorily or some
other legitimate Government interest. Merritt v. Department of Justice ,
6 M.S.P.R. 585, 596 (1981), modified on other grounds by Kruger v. Department
of Justice, 32 M.S.P.R. 71, 75 n.2 (1987). “[W]ide berth” is to be given to an
agency’s decision concerning what type of adverse action is necessary to promote
the efficiency of the service as long as that decision bears some nexus to the
reason for the adverse action. Einboden v. Department of the Navy , 802 F.3d
1321, 1325-26 (Fed. Cir. 2015).
An agency may show a nexus between off -duty misconduct and the
efficiency of the service by the following three means: (1) a rebuttable
presumption in certain egregious circumstances; (2) preponderant evidence that
the misconduct adversely affects the appellant’s or coworkers’ job performance or
the agency’s trust and confidence in the appellant’s job performance; or
(3) preponderant evidence that the misconduct interfered with or adversely
affected the agency’s mission. Kruger, 32 M.S.P.R. 71, 74. The Board and the
U.S. Court of Appeals for the Federal Circuit have long recognized that acts of
sexual misconduct involving a minor are sufficiently egregious to apply a
presumption of nexus. See Allred v. Department of Health and Human Services ,
786 F.2d 1128, 1130-31 (Fed. Cir. 1986); Graybill v. U.S. Postal Service ,
782 F.2d 1567, 1569, 1574 (Fed. Cir. 1986); Graham v. U.S. Postal Service ,
49 M.S.P.R. 364, 367 (1991); Williams v. General Services Administration ,
22 M.S.P.R. 476, 478-79 (1984), aff’d, 770 F.2d 182 (Fed. Cir. 1985); Hayes v.
Department of the Navy , 15 M.S.P.R. 378, 380-81 (1983) aff’d, 727 F.2d 1535
(Fed. Cir. 1984). Thus, we also agree with the administrative judge’s finding that4
the appellant’s off-duty misconduct is sufficiently egregious to apply the
rebuttable presumption of nexus.5 ID at 9.
If the employee’s conduct is so egregious that a nexus is presumed, then
the employee bears the burden of rebutting such a presumption. Graybill,
782 F.2d at 1573. In order to rebut the presumption of nexus, an appellant must
rebut the second and third category set forth in Kruger, i.e., the appellant must
establish that his off-duty misconduct did not affect his or his coworkers’ job
performance or the agency’s trust and confidence in his job performance ( Kruger
category 2) and he must establish that the misconduct did not interfere with or
adversely affect the agency’s mission ( Kruger category 3). See Kruger,
32 M.S.P.R. 71, 74. For the reasons discussed below, we find that the appellant
did not successfully rebut either category, and thus we find that he did not rebut
the presumption of nexus.
The appellant’s off-duty misconduct impacted the performance of his duties.
The administrative judge found that the appellant successfully rebutted the
presumption of nexus, in part, by finding that his off-duty misconduct did not
impact the performance of his duties, explaining that the deciding official was
unable to “credibly and logically” link the appellant’s off-duty misconduct to his
work as a research scientist and the quality of the scientific data he gathered and
analyzed.6 ID at 11. On review, the agency argues that the administrative judge
took a “myopic” view of the appellant’s job duties, because in addition to
5 Neither party disputes the finding that a rebuttable presumption of nexus applies.
6 The administrative judge found that the deciding official’s testimony was not credible
under Hillen because his assertions were “vague, speculative, generalized, and
ultimately unpersuasive.” ID at 11. A credibility assessment is proper when there is a
factual dispute at issue. See Hillen v. Department of the Army , 35 M.S.P.R. 453,
458 (1987) (stating that resolving credibility issues requires an administrative judge to
identify the factual questions in dispute). The administrative judge does not identify
nor do we find any factual disputes in this case which require a credibility assessment.
Because the issue of nexus is a legal question, not a factual one, we need not defer to
the administrative judge’s finding. See McNeil v. Department of Justice , 117 M.S.P.R.
533, ¶ 14 (2012) (recognizing that the question of whether the agency has established
nexus is a legal one).5
researching and analyzing data, the appellant was also required to interact with
and present the agency’s work to external entities. PFR File, Tab 1 at 22.
The record supports a finding that the appellant’s job involved more than
simply gathering and analyzing data. The appellant, as a high-level supervisory
chemist, was responsible for presenting the results of the agency’s work,
including making media appearances, attending national and international
conferences, publishing in scientific journals, and presenting to and collaborating
with important stakeholders such as state Government advisors, policy-makers,
academic institutions, and other Federal agencies. HR (testimony of the deciding
official, testimony of the appellant); PFR File, Tab 1 at 9, 20-23; IAF, Tab 7
at 103-110. The appellant has even been quoted in several magazines and
newspapers, including the Los Angeles Times and Smithsonian Magazine, and
has appeared in YouTube videos made by the agency and the National
Aeronautics & Space Administration (NASA), a frequent collaborator of the
agency. PFR File, Tab 1 at 21-23.
The appellant has not presented any evidence that establishes that his role
did not require a substantial amount of public interaction. Indeed, the appellant’s
statements about his position support the agency’s characterization. In his
2019 summary of accomplishments, the appellant identified several collaborative
projects with NASA, numerous published scientific papers he authored, and
national and international conferences he attended in his capacity as an agency
employee. IAF, Tab 7 at 103-110. The appellant’s testimony reiterates that in his
position he worked closely with other Federal agencies, collaborated with
academic institutions, had authored hundreds of scientific papers, and had
presented and networked at various scientific conferences and conventions.
HR (testimony of the appellant).
Accordingly, the assertion that the appellant merely gathered and analyzed
data is incorrect. ID at 11. It is clear that an integral part of the appellant’s job
was to present the agency’s work to outside parties. The deciding official6
testified that to perform such duties, it was imperative for the appellant to
conduct himself in a credible, reliable, and trustworthy manner. HR (testimony
of the deciding official). However, because of his off-duty misconduct, the
deciding official explained that the agency had lost confidence in the appellant’s
ability to be an effective representative for the agency. Id.; IAF, Tab 7 at 87-90.
The Federal Circuit has agreed that an agency’s loss of trust and confidence
in an employee who represented the agency to other agencies, grantees, state
Governments or private institutions, adversely affects the employer -employee
relationship and thus the efficiency of the service. Allred, 786 F.2d at 1131. For
instance, in Allred, the appellant was employed as a Supervisory Cost
Accountant, which required him to represent the agency before state and local
Governments, universities, hospitals, and various other grantees in preparing cost
allocation plans. Id. at 1129. The appellant was removed from his position after
pleading nolo contendere to one felony count of child molestation. Id. In
affirming the Board’s decision to uphold the removal, the Federal Circuit
expressly agreed with the Board’s determination that the supervisor’s loss of trust
and confidence in an employee who represented the agency to numerous
stakeholders affected the efficiency of the service. Id. at 1131. Similarly, here,
the deciding official testified that he had lost trust and confidence in the
appellant’s ability to perform his duties. HR (testimony of the deciding official).
As the appellant’s position requires him to represent the agency to external
stakeholders, we agree with the court in Allred that such loss in trust and
confidence adversely affects the employer-employee relationship, and thus, the
efficiency of the service. Allred, 786 F.2d at 1131. Contrary to the
administrative judge’s findings, we find that the appellant’s performance of his
duties was impacted by his off-duty misconduct. ID at 11-12. Thus, because the
appellant failed to rebut the second Kruger category, i.e., performance of duties,
he failed to rebut the presumption of nexus. Kruger, 32 M.S.P.R. 71, 74. 7
The appellant’s off-duty misconduct undermined the agency’s mission.
Nevertheless, even if the appellant established that his off-duty misconduct
did not impact the performance of his duties, he would still fail to rebut the
presumption of nexus because, contrary to the administrative judge’s findings, we
find that his off-duty misconduct undermined the agency’s mission, i.e., the third
Kruger category.7 Id.; ID at 11.
As the deciding official explained during his testimony, the agency’s
mission is not only to research and collect scientific data, but also to disseminate
such information to entities outside of the agency. HR (testimony of the deciding
official). He explained that it was crucial for scientists, like the appellant, to be
recognized as a credible voice so that the science could be relied upon by the
entities in their decision making. Id. Furthermore, as the deciding official
testified, the appellant’s research included such important issues as climate
change, and thus, it was imperative that the public have trust in the science being
represented to them in order to combat the threat of climate skepticism. Id.
Overall, the deciding official emphasized that credibility was necessary for the
agency to effectively represent science, for that science to be relied upon by
others, and that it not be placed in a position where its credibility could be
questioned. Id.
It is apparent to us that the appellant’s off-duty misconduct undermines the
agency’s mission. From the deciding official testimony, we understand that the
agency’s success hinges on its reputation for presenting credible and trustworthy
data. Therefore, it would be antithetical to the mission of the agency to retain
individuals who have engaged in conduct that calls into question their credibility,
trustworthiness, or integrity, especially when these same individuals are expected,
7 Because nexus may be proven by establishing either of the latter two categories set
forth in Kruger, in order to successfully rebut a presumption of nexus, the appellant
must successfully rebut both of the categories. See Kruger, 32 M.S.P.R. 71, 74. Thus,
if the appellant fails to rebut one of the categories, then he fails to rebut the
presumption of nexus. Id. 8
as part of their duties, to represent the agency’s work. Employing such
individuals places the agency’s mission at risk by detracting from the scientific
data, undermining public confidence in its representations, and placing the agency
in a position where it must defend the source of the data versus the data itself.
The Board has held that it is sufficient for the agency to establish that
public perceptions of an employee’s misconduct would impair the efficiency of
the agency by undermining public confidence in it. Jordan v. Department of the
Air Force, 36 M.S.P.R. 409, 414 (1988), aff’d, 884 F.2d 1398 (Fed. Cir. 1989)
(Table). The appellant’s misconduct shocks the conscience, and calls into
question his judgment, credibility, trustworthiness, integrity, and overall
character. Further, the nature of the appellant’s misconduct is well known among
his peers, as the appellant admitted to disclosing his misconduct to numerous
individuals, including those outside of the agency. HR (testimony of the deciding
official, testimony of the appellant); IAF, Tab 18 at 10-28. Thus, it is not mere
speculation by the agency that members of the community know about his
misconduct. The reputational risk to the agency is significant, and the agency has
a legitimate concern that the appellant’s conduct detracts from its mission.
Therefore, we find that the deciding official articulated a clear and
reasonable concern that the agency’s mission was at risk if it continued to employ
the appellant. HR (testimony of the deciding official). Furthermore, we do not
find that the appellant presented sufficient evidence to rebut such a concern.
Besides the appellant’s bare assertion, there is no evidence that the agency’s
personnel contacted him after his arrest seeking his assistance in a work capacity.
HR (testimony of the appellant). Nevertheless, to the extent that this did occur, it
does not diminish the deciding official’s testimony that the agency lost
confidence in the appellant’s ability to perform his duties, nor does it mitigate the
agency’s concern that the appellant’s retention would undermine public
confidence in the agency and its work. Similarly, while the appellant presented
letters of support, the Board has found that such evidence does not outweigh the9
agency’s apprehension as to an appellant’s ability to perform his duties and the
effect of his proven misconduct on the efficiency of the service. IAF, Tab 18
at 10-28; Jordan, 36 M.S.P.R. 409, 414-15 (explaining that written statements of
support by coworkers and satisfactory job performance did not outweigh the
agency’s legitimate apprehension as to his continued employment and the effect
of his proven misconduct on the agency); see Graham, 49 M.S.P.R. 364, 368
(finding that the testimony and statements of support from coworkers and friends
did not overcome the testimony of the appellant’s postmaster that he had lost trust
and confidence in the appellant). Accordingly, we find that the appellant’s
misconduct impacted the agency’s mission, and thus he failed to present
sufficient evidence to rebut the presumption of nexus.
The penalty of removal is within the bounds of reasonableness.
Because the administrative judge found that the appellant rebutted the
presumption of nexus, she did not determine if removal was a reasonable penalty.
ID at 12. Although we conclude that the administrative judge erred in finding
that the appellant rebutted the presumption of nexus, a remand is not necessary as
the record is complete and allows us to determine whether the penalty is
reasonable. Davis vs. Department of Veterans Affairs , 106 M.S.P.R. 654, ¶ 7
(2007) (finding remand to address the appellant’s discrimination claim
unnecessary when the record is complete and therefore the Board can make the
required findings).
When 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
the relevant factors and exercised management discretion within tolerable limits
of reasonableness. Davis v. U.S. Postal Service , 120 M.S.P.R. 457, ¶ 6 (2013).
In reviewing an agency -imposed penalty, the Board must give due weight to the
agency’s primary discretion in maintaining employee discipline and efficiency;
the Board’s function is not to displace management’s responsibility, but to ensure
that managerial judgment has been properly exercised within tolerable limits of10
reasonableness. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 302
(1981).
Here, the record reflects that the agency considered all relevant factors and
exercised its discretion within tolerable limits of reasonableness. The removal
decision contains a detailed and comprehensive review of the relevant factors,
noting the mitigating factors, but concluding that mitigation was not warranted.
IAF, Tab 7 at 24-27. The deciding official’s testimony reiterates the same
information. HR (testimony of the deciding official).
The Board has consistently held that the nature and seriousness of the
offense is the most important factor in a penalty determination. Arena v. U.S.
Postal Service, 121 M.S.P.R. 125, ¶ 6 (2014), aff’d per curiam , 617 F. App’x 996
(Fed. Cir. 2015) (Table); Raco v. Social Security Administration , 117 M.S.P.R. 1,
¶ 14 (2011). The egregious nature of the appellant’s misconduct alone is
sufficient to warrant removal. Nevertheless, there are several other aggravating
factors in this case. First, agencies are entitled to hold supervisors to a higher
standard than nonsupervisors because they occupy positions of trust and
responsibility. Edwards v. U.S. Postal Service , 116 M.S.P.R. 173, ¶ 14 (2010).
The appellant is a supervisor, and his actions, which involved him abusing a
position of trust as a parent, is antithetical to that of a supervisor. Second, the
notoriety of his misconduct is significant, as his arrest is public record, his name
appears on Colorado’s misdemeanor sex offender registry, and, most importantly,
he disclosed the facts of his misconduct to a sizeable number of individuals,
including colleagues, and thus, the misconduct appears to be well-known at least
within the scientific community. IAF, Tab 18 at 10-28; HR (testimony of the
appellant); Douglas, 5 M.S.P.R. 280, 305 (stating that notoriety of the offense or
impact upon the reputation of the agency is a factor to consider in penalty
determination). We have also considered the mitigating factors in this appeal,
including the appellant’s approximate 20 years of service, the numerous awards11
and accolades he has received, and his lack of prior discipline, but find that they
are insufficient to support mitigation of the penalty.
Accordingly, because we find that the agency proved its charge, the
appellant did not rebut the presumption of nexus, and the agency considered all
relevant factors and did not exceed its managerial discretion in assessing the
penalty, we affirm the removal.
NOTICE OF APPEAL RIGHTS8
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.
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.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.9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
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. 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 | Doe_JohnDE-0752-20-0416-I-1_Final_Order.pdf | 2024-08-12 | JOHN DOE v. DEPARTMENT OF COMMERCE, MSPB Docket No. DE-0752-20-0416-I-1, August 12, 2024 | DE-0752-20-0416-I-1 | NP |
727 | https://www.mspb.gov/decisions/nonprecedential/Sultana_NargisDC-1221-23-0428-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NARGIS SULTANA,
Appellant,
v.
DEPARTMENT OF COMMERCE,
Agency.DOCKET NUMBER
DC-1221-23-0428-W-1
DATE: August 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Nargis Sultana , Cary, North Carolina, pro se.
William Christopher Horrigan , 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 initial decision, which
dismissed her individual right of action (IRA) appeal for lack of jurisdiction
because the appellant did not meet her burden of proving that she had first
exhausted her administrative remedies with the Office of Special Counsel (OSC).
On petition for review, the appellant argues that she met the exhaustion
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
requirement by sending OSC a letter containing her allegations of whistleblower
reprisal, albeit one not included on OSC Form 14, the form required under OSC’s
regulations.2 Petition for Review File, Tab 1 at 4-5. The appellant acknowledges
that OSC informed her that she must use OSC Form 14 to initiate a whistleblower
reprisal complaint, but she alleges that she struggled to use OSC’s website to do
so, as instructed.3 Id. at 5-8. Finally, the appellant suggests that the agency has
engaged in further reprisal in the period since she contacted OSC. Id. at 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.
2 To file a whistleblower reprisal complaint with OSC, the associated regulations
provide that OSC’s complaint form “must be used.” 5 C.F.R. § 1800.2(c)(1). The
regulations further provide that “OSC will not process a complaint filed in any format
other than the completed OSC complaint form.” 5 C.F.R. § 1800.2(c)(2).
3 The administrative judge in this appeal informed the appellant that, should she
successfully file a complaint with OSC by submitting OSC Form 14, she would not be
precluded from filing another Board appeal when OSC notifies her that it has issued a
decision or terminated its investigation, or when 120 days have passed from the time
she files her OSC complaint. We take this opportunity to reiterate the same. If the
appellant has still not done so, she may try again, by filing OSC Form 14 with OSC.
See Augustine v. Department of Justice , 50 M.S.P.R. 648, 652 (1991 ) (recognizing that
there is no time limit on an employee’s right to seek corrective action from OSC for
whistleblower reprisal, but that there is a time limit for following that up with an IRA
appeal).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).
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 | Sultana_NargisDC-1221-23-0428-W-1_Final_Order.pdf | 2024-08-09 | NARGIS SULTANA v. DEPARTMENT OF COMMERCE, MSPB Docket No. DC-1221-23-0428-W-1, August 9, 2024 | DC-1221-23-0428-W-1 | NP |
728 | https://www.mspb.gov/decisions/nonprecedential/Parrish_Donna_D_AT-0432-22-0653-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DONNA D. PARRISH,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
AT-0432-22-0653-I-1
DATE: August 9, 2024
THIS ORDER IS NONPRECEDENTIAL1
Donna D. Parrish , Douglasville, Georgia, pro se.
Ayoka Campbell Davis , Esquire, 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
dismissed for lack of jurisdiction her appeal of the denial of a within grade
increase (WIGI) followed by a chapter 43 removal. For the reasons discussed
below, we GRANT the appellant’s petition for review, AFFIRM the determination
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
that the Board lacks jurisdiction over the appellant’s removal, AFFIRM AS
MODIFIED the finding that the Board lacks jurisdiction to review the arbitrator’s
decision denying the grievance of her removal, REVERSE the finding that the
Board lacks jurisdiction over the WIGI denial, and REMAND the case to the
Atlanta Regional Office for further adjudication of the appellant’s WIGI denial in
accordance with this Remand Order.
BACKGROUND
¶2Prior to the appellant’s removal, the agency’s Administration for Children
and Families (ACF) in the Immediate Office of the Regional Administrator
(IORA) employed her as a GS-13 Program Specialist in Atlanta, Georgia. Initial
Appeal File (IAF), Tab 1 at 1, Tab 75 at 52-58. On May 29, 2018, the agency
denied the appellant’s WIGI and advised her of her right to request
reconsideration. IAF, Tab 59 at 40-44. The appellant requested reconsideration
of the denial of her WIGI in June 2018. Id. at 39, 45. On September 5, 2018, the
National Treasury Employees Union (NTEU) filed a grievance of the WIGI
denial. IAF, Tab 1 at 7-11. The agency denied the appellant’s reconsideration
request by memorandum dated September 28, 2018. IAF, Tab 59 at 32-33. The
memorandum stated that the appellant had “the right to challenge this action by
appealing to binding arbitration, with NTEU concurrence.”2 Id. at 32.
¶3In the meantime, on August 9, 2018, the agency placed the appellant on a
performance improvement plan (PIP). IAF, Tab 15. On November 19, 2018, the
agency proposed the appellant’s removal for unacceptable performance pursuant
to 5 U.S.C. chapter 43. IAF, Tab 13 at 5-14. Ten days later, the appellant filed
an equal employment opportunity (EEO) complaint regarding, in relevant part,
the proposed removal and denial of the WIGI. IAF, Tab 28 at 218-19. She also
2 The appellant responded on October 28, 2018, indicating that she intended to seek
binding arbitration. IAF, Tab 59 at 34-35. However, the appellant asserted below, and
the agency does not dispute, that the NTEU did not agree with her request to proceed to
arbitration. IAF, Tab 83 at 15, Tab 90 at 5. Further, there is no evidence in the record
that the WIGI denial was actually arbitrated.2
responded to the deciding official regarding her proposed removal on
December 10, 2018. IAF, Tab 12 at 5, Tab 40 at 256-58. On January 7, 2019, the
agency issued a decision removing the appellant effective January 11, 2019. IAF,
Tab 12 at 5-7. In doing so, it advised the appellant that she could elect only one
of the following methods to challenge her removal: an appeal with the Board,
grievance arbitration, a formal EEO complaint, or an Office of Special Counsel
(OSC) complaint. Id. at 5-6. The agency further noted that once she filed in one
of these fora, she was precluded from seeking review in the others. Id. at 6. The
NTEU invoked arbitration on February 6, 2019. IAF, Tab 27 at 7, Tab 28 at 253.
¶4At some point in the processing of the appellant’s EEO complaint, the
agency merged her proposed removal into the removal decision. IAF, Tab 54
at 73, 97. On July 26, 2019, the agency issued a final agency decision (FAD)
regarding, as relevant here, her removal. Id. at 68, 86. It found that the appellant
failed to show that her removal was motivated by discrimination or EEO reprisal.
Id. at 84. The FAD informed the appellant that she could “appeal the decision to
the [Board], not to the Equal Employment Opportunity Commission (EEOC),
within 30 calendar days of receipt this [FAD].” Id. at 84 (emphasis in original).
The FAD provided guidance regarding how to file a Board appeal. Id. at 84-85.
¶5Notwithstanding this statement in the FAD regarding her appeal rights, the
appellant subsequently appealed the agency’s FAD to the EEOC’s Office of
Federal Operations (OFO). Id. at 95. In a decision issued in November 2019,
OFO found that, as it concerned the appellant’s removal, the July 26, 2019 FAD
properly informed the appellant that her right to appeal was before the Board, not
the EEOC, and OFO “advised [her] to file an appeal with the [Board] as soon as
possible on her removal.” Id. at 99.
¶6The agency addressed the appellant’s WIGI denial in a subsequent
August 30, 2022 FAD. IAF, Tab 54 at 5-6. The FAD concluded that, because
NTEU had already filed a grievance on the appellant’s behalf for the denial of the
WIGI such a claim would typically be dismissed, but that due to an “unresolved3
question” of whether the grievance was timely filed under the grievance
procedure, the WIGI claim would be considered. Id. at 7-8. Ultimately, the FAD
found that the agency did not discriminate against the appellant. Id. at 32. The
appellant then filed the instant appeal with the Board. IAF, Tab 1 at 1.
¶7As to the January 7, 2019 decision to remove the appellant, NTEU invoked
arbitration on her behalf. IAF, Tab 28 at 253. The applicable collective
bargaining agreement (CBA) permitted the NTEU to pursue a claim of
discrimination. IAF, Tab 14 at 12, 223. Although it appears the NTEU initially
raised a discrimination claim before the arbitrator, it later withdrew it. IAF,
Tab 14 at 12, 223, Tab 28 at 255. On September 20, 2021, the arbitrator denied
the appellant’s grievance after a hearing. IAF, Tab 14 at 5-30. In his decision,
the arbitrator stated summarily that, “There was no credible evidence of any
animus, discrimination, retaliation, or other improper conduct.” IAF, Tab 14
at 29. However, he did not identify the type of discrimination or retaliation he
was addressing. Id. Although he provided a list of the issues before him,
discrimination and retaliation were not among them. Id. at 6. The appellant
sought review in the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit), which affirmed the arbitrator’s decision. Parrish v. Department of
Health and Human Services , No. 2022-1170, 2022 WL 17495909 (Fed. Cir.
Dec. 8, 2022).
¶8In September 2022, the appellant filed the instant Board appeal challenging
her WIGI denial and removal. IAF, Tab 1 at 2, 77. The administrative judge
issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 91, Initial Decision (ID) at 1, 7. The appellant did not request a hearing and
the decision was issued on the written record. IAF, Tab 1 at 1; ID at 1. The
administrative judge found that the appellant elected to grieve both the WIGI
denial and her removal through the negotiated grievance procedure. ID at 3-6.
He further concluded that, to the extent the appellant was seeking review of the4
arbitrator’s decision, such review was collaterally estopped based on the Federal
Circuit decision. ID at 6-7.
¶9On review, the appellant disputes that she elected to file a grievance of
either her WIGI denial or removal. PFR File, Tab 1 at 4-5, 7, 10. She also argues
that collateral estoppel does not bar the Board’s review of the arbitrator’s
decision upholding her removal because the parties did not present her
discrimination claims to the arbitrator for a decision. Id. at 4-6, 8. The agency
has responded to the petition for review, and the appellant has replied. PFR File,
Tabs 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with the administrative judge that the appellant made a binding election
to challenge the removal decision through the grievance arbitration process.
¶10The administrative judge found that the Board lacks jurisdiction to review
the appellant’s removal because she made a binding election to proceed through
the arbitration process. ID at 4-6. The appellant argues that she timely filed an
appeal under 5 U.S.C. § 7702 from the agency’s FAD. PFR File, Tab 1 at 4-5.
We are not persuaded.
¶11Under 5 U.S.C. § 7121(d), an employee who is subject to a CBA and has
been affected by an action appealable to the Board that she alleges resulted from
EEO discrimination or reprisal which also falls under the coverage of the
negotiated grievance procedure, can elect to raise the matter under a statutory
procedure or the negotiated procedure, but not both. Galloway v. Social Security
Administration, 111 M.S.P.R. 78, ¶ 14 (2009); see 29 C.F.R. § 1614.302(b)
(containing the EEOC’s regulation on mixed-case complaint forum election). The
employee elects one of these options based on the forum in which she first timely
files. 5 U.S.C. § 7121(d). The statutory procedures contemplated by section
7121(d) include a direct appeal to the Board or the filing of an EEO complaint
followed by a Board appeal. Galloway, 111 M.S.P.R. 78, ¶ 14; see Miranne v.
Department of the Navy , 121 M.S.P.R. 235, ¶¶ 8-9 (2014) (discussing the5
statutory procedures for challenging an appealable action when the employee
raises a claim of discrimination). Thus, the employee’s choice of forum under
section 7121(d) is the negotiated grievance procedure, a Board appeal, or a formal
EEO complaint followed by a Board appeal. Galloway, 111 M.S.P.R. 78, ¶ 14.
An election to file a grievance is effective and deprives the Board of jurisdiction
over the grieved action if the employee receives adequate notice of her election
rights and timely files her grievance. Kirkwood v. Department of Education ,
99 M.S.P.R. 437, ¶ 15 (2005) (addressing an election under 5 U.S.C. 7121(e)).
¶12Here, the agency advised the appellant of her options to challenge her
January 2019 removal in the EEO process, before the Board, or through
arbitration. IAF, Tab 12 at 5-6. It also advised her that “[o]nce [she] had elected
one of these procedures, [she could] not change thereafter to a different
procedure,” and informed her of the deadlines for filing in the EEO and Board
processes. Id. On February 6, 2019, the NTEU timely invoked arbitration
regarding the appellant’s removal. IAF, Tab 14 at 223, 230, Tab 27 at 7, Tab 28
at 253. Although the appellant had previously filed an EEO complaint regarding
her proposed removal, she did not raise the agency’s removal decision in the EEO
process. IAF, Tab 28 at 218-19, Tab 54 at 20. On review, the appellant does not
assert that her election to proceed to arbitration was involuntary or unknowing.
We agree with the administrative judge that this election was binding.
¶13The appellant argues on review that she timely filed her Board appeal after
receiving the agency’s August 30, 2022 FAD. PFR File, Tab 1 at 4-5. Because
the appellant had previously elected to proceed through the negotiated grievance
process, and not the statutory process, we lack jurisdiction over her later-filed6
Board appeal of her removal.3 Therefore, we affirm the administrative judge’s
finding that the Board lacks jurisdiction over the appellant’s removal.
We agree with the administrative judge that Board lacks jurisdiction to review the
arbitration decision under 5 U.S.C. § 7121(d) but modify his reasoning.
¶14The administrative judge found that the Board lacks jurisdiction to review
the arbitrator’s decision denying the appellant’s removal grievance because she
had already litigated her removal before the Federal Circuit. ID at 1, 6-7. The
appellant disagrees, arguing that her discrimination claim has not yet been
addressed. PFR File, Tab 1 at 9-10. We agree with the administrative judge that
the Board lacks jurisdiction over this matter but modify his reasoning.
¶15Collateral 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. 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). The issue of the Board’s jurisdiction to review the arbitration
decision was not determined by the Federal Circuit. Instead, it affirmed the
arbitrator’s decision to deny the grievance on the merits, finding that substantial
evidence supported his findings. Parrish, 2022 WL 17495909, at *2-*4. Because
3 We decline to determine whether the appellant timely appealed her removal because
we lack jurisdiction over that action due to her prior election to proceed through the
negotiated grievance procedure. See Peterson v. Department of Health & Human
Services, 50 M.S.P.R. 237, 240-41 (1991 (recognizing that the Board generally prefers
to determine that it has jurisdiction over an appeal before proceeding to the issue of
timeliness), aff’d per curiam, 976 F.2d 747 (Fed. Cir. 1992). However, we observe that
the August 30, 2022 FAD did not address the agency’s removal decision. IAF, Tab 54
at 5-6, 20. The agency addressed the appellant’s removal in its earlier FAD, issued on
July 26, 2019, and advised the appellant of her right to appeal to the Board within
30 days. Id. at 68, 84-86; see 5 C.F.R. § 1201.54(b)(1) (setting forth the deadline for
filing a Board appeal from receipt of a FAD as 30 days). The appellant instead
appealed to OFO, which again advised her that her right to appeal was with the Board,
not the EEOC. Id. at 95, 99. The November 26, 2019 OFO decision advised the
appellant to file a Board appeal “as soon as possible.” Id. at 99. Thus, any filing
period would have expired in 2019, long before the appellant filed the instant appeal
approximately 3 years later. 7
the Federal Circuit did not address the Board’s jurisdiction, there is no
jurisdictional decision to which we can give collateral estoppel effect.
¶16Nonetheless, the Board lacks jurisdiction over the arbitration review claim.
Once an employee who has elected to proceed through the negotiated grievance
procedure receives an arbitration decision, she may seek review of that decision
by the Board under 5 U.S.C. § 7121(d). The Board has jurisdiction over a request
for review of an arbitration decision under 5 U.S.C. § 7121(d) when the following
conditions are met: (1) the subject matter of the grievance is one over which the
Board has jurisdiction; (2) the appellant either (i) raised a claim of EEO
discrimination or reprisal with the arbitrator in connection with the underlying
action, or (ii) raises a claim of EEO discrimination or reprisal in connection with
the underlying action for the first time with the Board if such allegations could
not be raised in the negotiated grievance procedure; and (3) a final decision has
been issued. Scanlin v. Social Security Administration , 2022 MSPB 10, ¶ 4;
5 C.F.R. § 1201.155(a)(1), (c).
¶17Here, we need not address whether conditions (1) and (3) are satisfied
because we find that the appellant did not meet her burden concerning condition
(2). The CBA provides that discrimination claims “may be raised under this
negotiated [grievance] procedure.” IAF, Tab 14 at 12, 223. As noted above, it
appears the NTEU initially raised a discrimination claim before the arbitrator but
later withdrew it. IAF, Tab 28 at 255. In his decision, the arbitrator did not
include discrimination or retaliation in the list of issues before him. IAF, Tab 14
at 6. His general statement in his decision that there was no evidence of
discrimination or retaliation is not sufficient for us to conclude that the appellant
presented her EEO claims for a decision by the arbitrator or that he, in fact,
decided them. IAF, Tab 14 at 29; see Scanlin, 2022 MSPB 10, ¶¶ 5-6 (finding
that an appellant did not prove that she raised a race discrimination claim before
an arbitrator based on evidence that she generally questioned whether the
agency’s action was discriminatory and later received an arbitration decision that8
did not address discrimination in any substantive way). On review to the Federal
Circuit, the appellant submitted a statement confirming that her “EEO claims
were not included in the arbitration case.” IAF, Tab 22 at 5, 13. Further, on
review the appellant does not dispute the arbitrator’s determination that the
NTEU withdrew a discrimination claim. PFR File, Tab 1 at 9-10.
¶18We find that, because the appellant could have raised a discrimination claim
before the arbitrator but has not proven that she did so, and instead the record
reflects she withdrew such a claim, the Board lacks jurisdiction over her request
for review.4 We modify the initial decision accordingly.
The appellant’s WIGI denial claim must be remanded for adjudication on the
merits.
¶19The administrative judge found that the appellant made a valid election to
pursue her grievance remedy as to her WIGI denial. ID at 3-4. The appellant
argues on review that she elected the EEO process followed by a Board appeal.
We agree.
¶20The Board may have jurisdiction over a reconsideration decision denying a
General Schedule employee a WIGI due to the agency’s negative determination of
competence. 5 U.S.C. § 5335(a)(B), (c); 5 C.F.R. § 531.410(d). An employee is
ordinarily not entitled to appeal the denial of a WIGI to the Board unless she first
has timely sought and received a reconsideration decision from the agency.
5 U.S.C. § 5335(c); Goines v. Merit Systems Protection Board , 258 F.3d 1289,
1292-93 (Fed. Cir. 2001). On May 29, 2018, the appellant received notice that
she would not receive a WIGI due to unacceptable performance.5 IAF, Tab 59
4 Due to our finding on jurisdiction, we need not address the timeliness of the request
for review. To the extent that the appellant argues on review that the parties failed to
submit prehearing briefs to the arbitrator, we lack jurisdiction to address this claim.
PFR File, Tab 1 at 9-10; IAF, Tab 28 at 256-57.
5 We have considered whether the appellant’s performance during the period at issue in
her WIGI denial was previously adjudicated by the arbitrator or the Federal Circuit in
connection with her removal. However, it was not. IAF, Tab 14 at 5-30; Parrish,
2022 WL 17495909. Nor was the period of performance at issue the same for the WIGI
denial and removal. The WIGI denial notice stated that the rating period at issue9
at 40-44. The appellant sought reconsideration of the WIGI denial, and she
received a reconsideration decision from the agency on September 28, 2018. Id.
at 36-39, 45, 51.
¶21As with her removal, an appellant’s challenge to her WIGI denial, which is
accompanied by an allegation of discrimination, is subject to the election
procedures of 5 U.S.C. § 7121(d) discussed above. See Brookins v. Department
of the Interior, 2023 MSPB 3, ¶ 6 (recognizing that under 5 U.S.C. § 7121(d), an
appellant raising an EEO claim may challenge his WIGI denial under a negotiated
grievance procedure or a statutory procedure). Thus, the employee’s choice of
forum under section 7121(d) is the negotiated grievance procedure, a Board
appeal, or a formal EEO complaint followed by a Board appeal. Galloway,
111 M.S.P.R. 78, ¶ 14; see Miranne, 121 M.S.P.R. 235, ¶¶ 8-9. Here, the
appellant is a bargaining unit employee covered by a CBA with a negotiated
procedure that includes WIGI denials and permits the grievant to raise a claim of
discrimination. IAF, Tab 14 at 31, 142-44, 221-23.
¶22The administrative judge concluded that the appellant elected to pursue her
WIGI denial through the grievance process. ID at 5-6. An agency’s failure to
provide proper notice of the “potential avenues of recourse” and of the limitations
on those rights precludes finding that the employee has made a knowing and
informed election and thus renders it invalid. Agoranos v. Department of Justice ,
119 M.S.P.R. 498, ¶¶ 15-16 (2013). Here, the appellant did not receive proper
notice of her election rights. The agency’s May 29, 2018 WIGI denial letter did
not notify the appellant of how she might challenge her WIGI denial, other than
to advise her that she could request reconsideration from the agency. IAF, Tab 59
at 43. Therefore, the NTEU’s September 5, 2018 grievance was not a valid
election to pursue the WIGI denial in that forum. IAF, Tab 1 at 7-11. In any
covered January 1 through May 21, 2018. IAF, Tab 59 at 40. The proposed removal
cites the denial of the WIGI as an example of the alleged ongoing performance
deficiencies, but was based on a determination that the appellant’s performance was
unacceptable during the PIP, from August 9 to October 9, 2018. IAF, Tab 13 at 5-13. 10
event, at the time the NTEU filed its grievance, the appellant had not yet received
a reconsideration decision, which is prerequisite to Board jurisdiction and thus to
a valid election. See Douglass v. Department of Transportation , 60 M.S.P.R. 1,
3-5 (1993) (finding that an appellant’s filing of an OSC complaint regarding her
removal while her proposed removal was pending but before the agency issued its
removal decision did not bar her subsequent direct appeal of her removal to the
Board because when she filed her OSC complaint the Board did not yet have
jurisdiction).
¶23The agency’s September 28, 2018 denial of the appellant’s reconsideration
request only stated that the appellant had “the right to challenge this action by
appealing to binding arbitration, with NTEU concurrence.” IAF, Tab 59 at 32-33.
It did not notify her of her right to seek EEO counseling or to file an appeal of the
WIGI denial to the Board. Id. at 32. Therefore, we find that the appellant
received insufficient notice of her appeal rights and that the election to grieve her
WIGI denial was not valid. See 5 C.F.R. § 531.410(d) (requiring an agency to
provide an employee with notice of Board appeal rights upon denying a request
for reconsideration of a WIGI denial).
¶24Under 5 C.F.R. § 1201.154(b)(1), if an appellant has filed a timely formal
complaint of discrimination with her agency relating to or stemming from an
action that can be appealed to the Board, also known as a mixed-case complaint,
an appeal to the Board must be filed, as relevant here, within 30 days after the
appellant receives the agency resolution or final decision on the discrimination
issue. McCoy v. U.S. Postal Service , 108 M.S.P.R. 160, ¶¶ 10, 12 (2008).
¶25The appellant filed a formal EEO complaint on November 29, 2018. IAF,
Tab 54 at 6. The FAD regarding her WIGI denial was issued on August 29, 2022.
Id. at 5-8, 36. The appellant asserted on her Board appeal form, and the agency
does not dispute, that she received the FAD the following day. IAF, Tab 1 at 2.11
The appellant transmitted her Board appeal via FedEx on September 28, 2022.6
Id. at 77. Therefore, her appeal was timely filed within 30 days of her receipt of
the agency’s FAD. See 5 C.F.R. § 1201.154(a), (b)(1). Accordingly, we find that
the Board has jurisdiction over her WIGI denial and reverse the administrative
judge’s finding to the contrary.
ORDER
¶26For the reasons discussed above, we remand this case to the regional office
for further adjudication of the merits of the appellant’s WIGI denial in
accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Acting Clerk of the Board
Washington, D.C.
6 To the extent the appellant alleges on review that she filed the instant appeal on
December 9, 2022, a review of our records indicates that her Board appeal was filed on
September 28, 2022. PFR File, Tab 1 at 9; IAF, Tab 1 at 1, 77; see 5 C.F.R. § 1201.4(l)
(providing that the date of filing by commercial delivery is the date the document was
delivered to the commercial delivery service).12 | Parrish_Donna_D_AT-0432-22-0653-I-1_Remand_Order.pdf | 2024-08-09 | DONNA D. PARRISH v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, MSPB Docket No. AT-0432-22-0653-I-1, August 9, 2024 | AT-0432-22-0653-I-1 | NP |
729 | https://www.mspb.gov/decisions/nonprecedential/Salinas_ElenaDA-0752-20-0048-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELENA SALINAS,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-20-0048-I-1
DATE: August 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Adam Casner , Esquire, Cedar Park, Texas, for the appellant.
Jennifer Cook , Houston, Texas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. Generally,
we grant petitions such as this one only in the following circumstances: the
initial decision contains erroneous findings of material fact; the initial decision is
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
based on an erroneous interpretation of statute or regulation or the erroneous
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
On petition for review, the appellant argues that the administrative judge
made erroneous factual findings and that the initial decision failed to follow
established precedential Board decisions. However, most of the petition for
review is comprised of a nearly verbatim copy of the appellant’s closing argument
brief, which the administrative judge considered before issuing the initial
decision. Compare Petition for Review (PFR) File, Tab 1 at 4-16, with Initial
Appeal File (IAF), Tab 46 at 6-15. The Board has held that pleadings that do not
raise specific arguments of error and instead merely incorporate arguments set
forth in a brief submitted below do not meet the criteria for Board review because
they do 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); Mawson v. Department of the Navy , 48 M.S.P.R. 318, 321 (1991).
The only new arguments the appellant raises on review are that the administrative
judge made “blanket” credibility findings in favor of the agency without
resolving inconsistencies in the testimony from agency officials, and that the
facts in her case are comparable to those in the Board decision Freeborn v.2
Department of Justice , 119 M.S.P.R. 290 (2013), in which the Board reversed the
administrative judge’s finding that the appellant’s decision to resign in that case
was not involuntary. PFR File, Tab 1 at 12-15.
Regarding the appellant’s challenge to the administrative judge’s
credibility determinations, we see no reason to disturb those findings on review.
See Clay v. Department of the Army , 123 M.S.P.R. 245, ¶ 9 (2016) (finding no
reason to disturb the administrative judge’s findings when the administrative
judge considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Crosby v. U.S. Postal Service , 74 M.S.P.R. 98, 106 (1997)
(same). The appellant argues that, although the administrative judge concluded
that the testimony from each agency witness was consistent and “independently
corroborated the essential elements” of the others, he failed to consider the fact
that the testimony from agency officials also corroborated the essential elements
of the appellant’s testimony, and instead concluded that her testimony was not
credible. PFR File, Tab 1 at 12. She also asserts that the administrative judge
failed to address the fact that her former first-line supervisor’s contemporaneous
notes were inconsistent with his own testimony. Id.
With respect to the appellant’s argument that the administrative judge erred
by failing to credit her testimony over contrary testimony by agency officials, the
initial decision reflects that, in crediting the testimony from the agency officials
over the contrary testimony from the appellant, the administrative judge identified
and examined the relevant Hillen factors in resolving credibility issues, including
the straightforward and unhesitant demeanor of the agency witnesses, the
consistency of each agency witness’s testimony with the other testimony and
evidence in the record, and the lack of any bias from the agency witnesses. IAF,
Tab 48, Initial Decision (ID) at 11-14 (citing Hillen v. Department of the Army ,
35 M.S.P.R. 453, 458 (1987) (setting forth the factors relevant to resolving
credibility issues) and Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83 -87
(1981) (setting forth the relevant factors for assessing the probative value of3
hearsay evidence)). By contrast, the administrative judge noted that the appellant
failed to provide any evidence supporting her assertion that her former first-line
supervisor made a gender-based comment about her arrival, or that he yelled at
her in front of her coworkers during a training session in finding that her version
of events was not credible. ID at 12-13 (citing Hillen, 35 M.S.P.R. at 458).
Regarding her claim that the testimony by agency witnesses corroborated
the essential elements of her allegations, as the agency correctly notes on review,
both the appellant and the identified agency witnesses testified that the appellant
and her supervisor did, in fact, have a conversation during the defensive tactics
training session, which the administrative judge credited, but the agency
witnesses all denied the appellant’s claim that her supervisor yelled at her or
humiliated her, and the administrative judge credited the consistent testimony by
agency witnesses on this point. PFR File, Tab 1 at 12, Tab 3 at 16; ID at 13
(citing Hillen, 35 M.S.P.R. at 458). Regarding the purported discrepancy
between her first-line supervisor’s contemporaneous notes and his later
testimony, as the agency correctly notes, the appellant does not identify which
portion of the supervisor’s contemporaneous notes she believes are inconsistent
with his provided testimony, so it is impossible to discern what her specific
objection is on review. PFR File, Tab 1 at 12, Tab 3 at 16; IAF, Tab 18 at 4-10.
Nevertheless, we have reviewed the supervisor’s notes, as well as the
administrative judge’s findings in the initial decision, and see no reason to disturb
those findings. Although the appellant denied making several of the statements
attributed to her by her first-line supervisor during her jurisdictional hearing
testimony, the administrative judge correctly made specific and detailed
credibility findings in crediting the supervisor’s version of events over the
appellant’s, and the appellant has not offered any new argument on review
challenging those findings.
Finally, with respect to the appellant’s argument that the facts in her case
are comparable to those in Freeborn, and that the agency misled her or failed to4
provide her with adequate and complete information from which to make an
informed decision regarding whether to resign from her position, there is no merit
to this argument. PFR File, Tab 1 at 13-15. The source of the appellant’s
assertion that the agency failed to provide her with necessary information
regarding her resignation decision appears to stem from testimony by the acting
Port Director during the hearing stating that she had planned to serve the
appellant with a letter of intent to remove her weapon. Id. at 14; IAF, Tab 44,
Hearing Compact Disc (testimony of the acting Port Director). The appellant
appears to imply that the Port Director’s intention to issue the letter and the
agency’s failure to inform the appellant of that intention represented a failure on
the agency’s part to provide her with information necessary to make an informed
decision concerning her resignation, rendering her resignation decision
involuntary. PFR File, Tab 1 at 13 -15.
As an initial matter, as the agency correctly notes, the acting Port Director
never actually served the letter of intent on the appellant, so she would not have
been aware of the fact that the agency may have been preparing such a letter at
the time she made her initial decision to resign from her position, and therefore it
could not have had any influence on her decision to resign. PFR File, Tab 3
at 17. Further, as the agency correctly observes, the facts of Freeborn are readily
distinguishable. Id. at 16-18. The appellant in Freeborn was required to accept a
10-day suspension for misconduct or resign immediately, and the supervisor who
gave him this ultimatum provided him with incomplete or inaccurate information
in doing so, failing to inform him that the 10-day suspension would be paid.
Freeborn, 119 M.S.P.R. 290, ¶ 8. In reversing the administrative judge’s
decision dismissing the appeal for lack of jurisdiction, the Board relied heavily on
the fact that the supervisor was aware of Mr. Freeborn’s erroneous belief and did
nothing to correct it, and the fact that Mr. Freeborn testified clearly and
unequivocally that he would not have resigned if not for this mistaken belief. Id.,
¶¶ 14-15. Here, by contrast, the agency did not convey any incorrect or5
misleading information to the appellant or force her to choose between potential
disciplinary action or resignation; instead, it was the appellant who volunteered
her decision to resign on her own volition. For the foregoing reasons, we find no
error in the administrative judge’s reasoning and see no reason to disturb the
findings in the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
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.6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 on7
race, color, religion, sex, 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) or8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (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. 9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
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 | Salinas_ElenaDA-0752-20-0048-I-1_Final_Order.pdf | 2024-08-09 | ELENA SALINAS v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-20-0048-I-1, August 9, 2024 | DA-0752-20-0048-I-1 | NP |
730 | https://www.mspb.gov/decisions/nonprecedential/Faiferlick_ShaneSF-0752-20-0401-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHANE FAIFERLICK,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
SF-0752-20-0401-I-1
DATE: August 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Joshua L. Klinger , Esquire, Denver, Colorado, for the appellant.
Adam W. Boyer and Lynn Stoppy , Kansas City, Kansas, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed his removal from Federal service. Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
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 find that the agency did not commit harmful procedural error, we
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The appellant was formerly employed by the Bureau of Prisons as a
Maintenance Worker Supervisor until the agency removed him based on charges
of off-duty misconduct, failure to report a misdemeanor arrest, and providing
inaccurate information during an official investigation. Initial Appeal File (IAF),
Tab 6 at 21-24, 29-32, Tab 8 at 4. The appellant appealed and asserted that the
agency could not prove the specifications, the penalty of removal was too harsh,
and the agency violated his due process rights. IAF, Tab 1 at 4, Tab 15.
Specifically, the appellant argued that the agency violated his due process rights
when the deciding official considered two documents not provided to the
appellant with the notice of proposed removal—the Standards of Employee
Conduct and the agency’s table of penalties incorporated therein—and when the
deciding official considered the factors enumerated in Douglas v. Veterans
Administration, 5 M.S.P.R. 280 (1981), without prior notice. IAF, Tab 15.
After a hearing, the administrative judge issued an initial decision, which
sustained two of the three charges, rejected the due process affirmative defense,2
and affirmed the appellant’s removal. IAF, Tab 19, Initial Decision (ID) at 7-15,
21.2 The appellant has filed a petition for review challenging the administrative
judge’s denial of the due process defense, and the agency has filed a response.
Petition for Review (PFR) File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant contends that the administrative judge erred in
finding that the agency did not violate his due process rights because he was on
notice that the deciding official would consider the Standards of Employee
Conduct and the table of penalties incorporated therein, and he was on notice and
had an opportunity to respond to the information used by the deciding official in
weighing the Douglas factors in reaching a decision on the removal action.
PFR File, Tab 3; ID at 11-15.
“The core of due process is the right of notice and a meaningful
opportunity to be heard.” LaChance v. Erickson , 522 U.S. 262, 266 (1998). The
Board has held that an agency’s failure to provide a nonprobationary Federal
employee with prior notice and an opportunity to present a response to an
appealable agency action deprives him of his property right in his employment
and constitutes an abridgment of his constitutional right to minimum due process
of law. Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 680-81 (1991).
A deciding official may not consider new and material information that the
appellant was not aware would be taken into consideration in connection with the
charges or the penalty. Ward v. U.S. Postal Service , 634 F.3d 1274, 1280 (Fed.
Cir. 2011); Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368, 1377
(Fed. Cir. 1999). In determining whether a deciding official’s consideration of
information violates due process, the question is whether the information is “so
substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such circumstances.”
2 The administrative judge found that the agency failed to prove the charge of failure to
report a misdemeanor arrest. ID at 8-10.3
Stone, 179 F.3d at 1377. When such a due process violation has occurred, the
violation is not subject to the “harmless error test,” and the appellant is entitled to
a new constitutionally correct administrative procedure. Id.
We first address the appellant’s argument that the agency violated his due
process rights when the deciding official considered the Standards of Employee
Conduct, including the agency’s table of penalties, in reaching his decision to
remove the appellant without providing a copy of the document in the evidence
file with the proposed removal. PFR File, Tab 3 at 6, 8-9. The Standards of
Employee Conduct is a document that outlines the behavioral expectations of
agency employees and includes recommended penalties for misconduct.
IAF, Tab 6 at 87-120. The appellant acknowledged receipt of this document upon
his hire. Id. at 86. We agree with the administrative judge that the appellant was
on notice that the Standards of Employee Conduct and the incorporated table of
penalties would be considered in his removal action because the document is
referenced four times in the notice of proposed removal. Id. at 29-32; ID at 13.
Further, the notice of proposed removal quotes the standards of conduct that the
agency alleged the appellant violated under each charge, and the appellant
responded to each of those charges in his response. IAF, Tab 6 at 25-27; 29-31;
see Coppola v. U.S. Postal Service , 47 M.S.P.R. 307, 312 (1991) (holding that
when an appellant comes forward and refutes a charge made against him, the
Board cannot find that he was not on notice of the charge).
Regarding the table of penalties, the appellant argues on review that
Jenkins v. Environmental Protection Agency , 118 M.S.P.R. 161 (2012), requires
the agency to notify the appellant which charges in the table of penalties it would
consider, and its failure to do so violated the appellant’s due process rights.
PFR File, Tab 3 at 9. We disagree. In Jenkins, the Board found a due process
violation when the deciding official considered the range of penalties in the
agency’s table of penalties for charges other than those listed in the notice of
proposed removal. Jenkins, 118 M.S.P.R. 161, ¶ 12. That is not the case here.4
The appellant was informed that removal was being proposed based on three
violations of the Standards of Employee Conduct, and the deciding official
testified that he considered the range of penalties for those charges only. IAF,
Tab 6 at 29-32, Tab 17, Hearing Record (testimony of deciding official).
Consideration of consistency of the penalty with the agency’s table of penalties is
not an aggravating factor that would require advance notice. See Harding v. U.S.
Naval Academy , 567 F. App’x 920, 925 (Fed. Cir. 2014)3 (holding that
consistency of the penalty with other decisions was not used as an aggravating
factor and thus due process did not require that an employee be given advance
notice). We find that consideration of documents that are referenced and quoted
in the notice of proposed removal is not “so likely to cause prejudice that no
employee can fairly be required to be subjected to a deprivation of property under
such circumstances,” and thus, we find no due process violation. Stone, 179 F.3d
at 1377.
Finally, the appellant argues on review that the deciding official’s
consideration of the Douglas factors “not listed in the evidence file” constitutes a
due process violation because the appellant did not know the deciding official
would consider this “new information.” PFR File, Tab 3 at 8. We disagree.
Although a deciding official’s consideration of aggravating factors as a basis for
the imposition of a penalty could constitute a due process violation, the appellant
does not argue, and we do not find, that the deciding official considered
aggravating factors that were not contained in the notice of proposed removal.
See Lopes v. Department of the Navy , 116 M.S.P.R. 470, ¶ 5 (2011). We agree
with the administrative judge that the facts and evidence the deciding official
considered in weighing the Douglas factors were listed in the notice of proposed
removal and the appellant had the opportunity to respond to those facts in his
written and oral responses. ID at 15; IAF, Tab 6 at 25-32. An appellant is not
3 The Board may rely on unpublished decisions from the U.S. Court of Appeals for the
Federal Circuit to the extent the Board finds the reasoning persuasive, as we do here.
Graves v. Department of Veterans Affairs , 123 M.S.P.R. 434, ¶ 10 n.1 (2016). 5
entitled to know in advance the particular weight the deciding official may attach
to certain facts. Wilson v. Department of Homeland Security , 120 M.S.P.R. 686,
¶ 12 (2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015). Thus, the deciding
official’s weighing of the Douglas factors did not violate the appellant’s due
process rights.
Although we find no constitutional violation, we still must consider
whether the agency committed harmful procedural error. Stone, 179 F.3d.
at 1377-78 (stating that, in addition to the protections afforded by the
Constitution, public employees also are entitled to whatever other procedural
protections are afforded them by statute, regulation, or agency procedure).
Although an agency is required to state the reasons for a proposed adverse action
in sufficient detail to allow the employee to make an informed reply, the charge
must be viewed in light of the accompanying specifications and circumstances,
and should not be technically construed. Spearman v. U.S. Postal Service ,
44 M.S.P.R. 135, 139 (1990). As we explained above, the notice of proposed
removal provided sufficient details regarding the charges and aggravating factors
for the appellant to have made an informed reply, and we therefore find no
harmful procedural error.
Therefore, we deny the petition for review and affirm the initial decision as
expressly modified.6
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.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.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Faiferlick_ShaneSF-0752-20-0401-I-1_Final_Order.pdf | 2024-08-09 | SHANE FAIFERLICK v. DEPARTMENT OF JUSTICE, MSPB Docket No. SF-0752-20-0401-I-1, August 9, 2024 | SF-0752-20-0401-I-1 | NP |
731 | https://www.mspb.gov/decisions/nonprecedential/Ross_Harold_A_NY-0752-18-0175-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD A. ROSS,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
NY-0752-18-0175-I-1
DATE: August 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Harold A. Ross , West Orange, New Jersey, pro se.
Eric Teegarden , Fort McCoy, Wisconsin, 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 his removal under 5 U.S.C. chapter 75. For the reasons set forth below,
the appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant was a GS-11 Budget Analyst for the agency. Initial Appeal
File (IAF), Tab 23 at 6. Effective July 7, 2018, the agency removed the appellant
for conduct and attendance reasons. Id. at 6-13, 19-22. He filed a Board appeal,
and on April 22, 2019, the administrative judge issued an initial decision
affirming the removal. IAF, Tab 38, Initial Decision (ID). The initial decision
informed the appellant that the deadline for filing a petition for review was
May 27, 2019. ID at 8.
On May 30, 2019, the appellant filed a petition for review by electronic
submission. Petition for Review (PFR) File, Tab 1. The Clerk of the Board
issued an order notifying the appellant of the applicable timeliness standards and
directing him to file evidence and argument showing that the petition for review
was untimely filed or that there was good cause for any delay. PFR File, Tab 2.
The appellant filed a motion to waive the filing deadline. PFR File, Tab 5. The
agency has filed a response to the petition for review, opposing it on both
timeliness and substantive grounds, and the appellant has filed a reply to the
agency’s response. PFR File, Tabs 6-7.
ANALYSIS
A petition for review must be filed within 35 days after the initial decision
is issued, or, if the appellant shows that he received the initial decision more
than 5 days after it was issued, within 30 days after the date of receipt.
Williams v. Office of Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008);
5 C.F.R. § 1201.114(e). The Board will waive the filing deadline for a petition
for review only upon a showing of good cause for the filing delay. Lawson v.
Department of Homeland Security, 102 M.S.P.R. 185, ¶ 5 (2006); 5 C.F.R.
§§ 1201.12, 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 his case. Alonzo v. Department of the Air Force,2
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
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 this case, it appears to be undisputed that the petition for review was
untimely filed. The appellant is a registered e-filer, and the initial decision was
served on him electronically on April 22, 2019—the date it was issued. IAF,
Tab 1 at 2, Tab 39; PFR File, Tab 5 at 4; see 5 C.F.R. § 1201.4(i)-(n). The initial
decision set forth the deadline for filing a petition for review as May 27, 2019.
See 5 C.F.R. § 1201.114(e) (setting forth a 35 -day deadline for filing a petition
for review). Because May 27, 2019, was a Federal holiday, the appellant’s
deadline to file a petition for review was May 28, 2019. See 5 C.F.R. § 1201.23
(“If the date that ordinarily would be the last day for filing falls on a Saturday,
Sunday, or Federal holiday, the filing period will include the first workday after
that date.”). As indicated by the time stamp, the appellant filed his petition for
review on May 30, 2019. PFR File, Tab 1; see 5 C.F.R. § 1201.4(l) (“The date of
filing by e-filing is the date of electronic submission.”). We find that the petition
was 2 days untimely.
The record shows that the appellant attempted to file his petition for review
electronically on May 27, 2019 at 11:46 p.m. PFR File, Tab 5 at 10. However,
he ran into technical difficulties and was unable to complete the submission. Id.
at 4, 10. The appellant sought assistance from the Board’s technical support
team, which replied the following morning at 10:04 a.m., informing him that he
was unable to upload his petition because it contained password-protected files.
Id. at 10. The technical support team gave the appellant instructions on how to3
complete his submission, and the appellant completed it on May 30, 2019.
PFR File, Tab 1, Tab 5 at 10.
On review, the appellant attributes the untimeliness of his petition to these
technical difficulties and to his displacement from his home, which resulted from
a “toxic exposure event” in his residence that left him without a fixed place to
reside “[d]uring the time before and after” he received the initial decision.
PFR File, Tab 1 at 3. Regarding the technical difficulties, the Board has found
that a party has not shown the due diligence necessary for a finding of good cause
when he waits until the last minute to file his petition and encounters unexpected
problems. Defreitas v. Defense Mapping Agency, 45 M.S.P.R. 55, 57-58 (1990).
Moreover, the appellant has not explained why, after receiving assistance
from technical support, he waited 2 additional days to file his petition. See Blair
v. Office of Personnel Management, 89 M.S.P.R. 113, ¶ 12 (2001) (finding that
the appellant failed to show good cause for his untimely filing because his
explanation did not cover the entire period of the delay), aff'd, 31 F. App’x 646
(Fed. Cir. 2002). Nor has he explained why he did not file his petition
by alternate means even though he was informed when he elected to e-file that
he could still make non-electronic submissions. IAF, Tab 1 at 2; see
C.F.R. § 1201.14(f) (2019).
Regarding the appellant’s living situation, the record shows that the
appellant originally vacated his home on February 27, 2019, and continued
without a stable living situation until at least May 1, 2019. IAF, Tab 33 at 4; PFR
File, Tab 5 at 4, 9. However, the record is silent on whether the appellant’s
displacement continued throughout the petition for review filing period and if so,
what his current living situation is. See Blair, 89 M.S.P.R. 113, ¶ 12. Moreover,
the appellant has not explained how these circumstances prevented him from
making a timely filing. See Vitale v. Department of Justice, 33 M.S.P.R. 97, 99 ,
aff’d, 833 F.2d 1023 (Fed. Cir. 1987). Finally, the appellant states that he failed
to request an extension because he presumed that this was not a possibility. PFR4
File, Tab 5 at 5. However, it is well settled that an appellant’s inexperience with
legal matters and unfamiliarity with Board procedures does not warrant waiver of
the Board’s deadlines. Scott v. Social Security Administration, 110 M.S.P.R. 92,
¶ 9 (2008).
Although the filing delay in this case was brief and the appellant was
proceeding pro se, these factors, without more, do not demonstrate good cause for
an untimely filing. See Simon v. Department of Veterans Affairs, 65 M.S.P.R.
176, 181 (1994). In the interests of judicial efficiency and fairness, the
Board will not waive its timeliness requirements absent good cause shown.
Bond v. Department of the Army, 51 M.S.P.R. 322, 324 (1991). Accordingly, we
dismiss the petition for review as untimely filed. 5 C.F.R. § 1201.114(g). This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the removal.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection Enhancement
Act of 2012 . This option applies to you only if you have raised claims of reprisal
for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected
activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your
judicial petition for review “raises no challenge to the Board’s disposition of
allegations of a prohibited personnel practice described in section 2302(b) other
than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or
(D),” then you may file a petition for judicial review either with the U.S. Court of
Appeals for the Federal Circuit or any court of appeals of competent jurisdiction.3
The court of appeals must receive your petition for review within 60 days of the
date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Ross_Harold_A_NY-0752-18-0175-I-1_Final_Order.pdf | 2024-08-09 | HAROLD A. ROSS v. DEPARTMENT OF THE ARMY, MSPB Docket No. NY-0752-18-0175-I-1, August 9, 2024 | NY-0752-18-0175-I-1 | NP |
732 | https://www.mspb.gov/decisions/nonprecedential/McDonough_Pat_J_PH-0752-19-0113-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICK J. MCDONOUGH, JR.,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
PH-0752-19-0113-I-1
DATE: August 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James W. Richard, II , Esquire, Silver Spring, Maryland, for the appellant.
Maria Surdokas , Esquire, and Rebecca Snowdall , Esquire,
Washington, D.C., for the agency.
Rashawn Rich George , Esquire, College Park, 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
addressed a pair of joined removal appeals, ordering the agency to pay the
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
appellant $27,730.64 regarding the first removal and sustaining the second
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 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 the
two appeals, we SEVER the joined removal appeals and address just the second
appeal in this decision.2 We conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review as to the second
removal action. Therefore, we DENY the petition for review regarding the same.
Except as expressly MODIFIED to address an additional due process claim, we
AFFIRM the initial decision’s findings about the appellant’s second removal.
BACKGROUND
This decision stems from two appeals that the administrative judge joined
for adjudication.3 In his first appeal, the appellant challenged his December 2016
2 The appellant’s other appeal, MSPB Docket No. PH-0752-17-0156-I-4, is addressed in
a separate decision. McDonough v. Department of Transportation , MSPB Docket
No. PH-0752-17-0156-I-4, Remand Order (Dec. 13, 2023).
3 The appellant’s first appeal has multiple docket numbers due to dismissals without
prejudice to accommodate adjudicatory delays. McDonough v. Department of
Transportation, MSPB Docket No. PH-0752-17-0156-I-1, Initial Appeal File
(0156 IAF), Tab 1; McDonough v. Department of Transportation , MSPB Docket
No. PH-0752-17-0156-I-2, Refiled Appeal File (0156-I-2 AF), Tab 1; McDonough v.
Department of Transportation , MSPB Docket No. PH-0752-17-0156-I-3, Refiled
Appeal File (0156-I-3 AF), Tab 1; McDonough v. Department of Transportation , MSPB
Docket No. PH-0752-17-0156-I-4, Refiled Appeal File (0156-I-4 AF), Tab 1. The
appellant’s second appeal has just one docket number. McDonough v. Department of
Transportation, MSPB Docket No. PH-0752-19-0113-I-1, Initial Appeal File2
removal from the position of Air Traffic Control Specialist. The removal was
based on charges of absence without leave (AWOL) and failure to follow leave
procedures. 0156 IAF, Tab 1, Tab 4 at 27-31, 70-73. Well into the adjudication
of that appeal, the agency determined that the deciding official had mistakenly
denied the appellant due process by engaging in ex parte communication, and
consequently, it rescinded the first removal action. 0156-I-2 AF, Tab 24
at 10-12; McDonough v. Department of Transportation , MSPB Docket No. PH-
0752-19-0113-I-1, Hearing Transcript, Day 2 (0113 HT2) at 80 (testimony of the
appellant’s second-level supervisor). The agency then removed the appellant a
second time, 2 years after its original removal action, based on the same
misconduct and charges as the first removal. McDonough v. Department of
Transportation, MSPB Docket No. PH-0752-19-0113-I-1, Initial Appeal File
(0113 IAF), Tab 3 at 10-13, 34-37. In his second appeal, the appellant challenged
this second removal action. 0113 IAF, Tab 1. The administrative judge joined
the appeals, developed the records, and held a 3-day hearing before issuing a
single decision. 0113 IAF, Tab 46, Initial Decision (ID); 0113 Hearing
Transcript, Day 1 (0113 HT1); 0113 HT2; 0113 Hearing Transcript, Day 3
(0113 HT3).
Regarding the second removal action, dated December 2018, the
administrative judge first found that the agency proved both specifications
underlying its AWOL charge and its lone specification of failure to follow leave
procedures. ID at 15-23. Next, she found that the appellant failed to prove his
claims of disability discrimination, ID at 24-28, reprisal for requesting reasonable
accommodation, ID at 28, due process violations, ID at 30-36, or harmful
procedural error, ID at 36-38. Finally, the administrative judge found that the
agency proved the requisite nexus and reasonableness of its penalty. ID at 38-42.
The appellant has filed a timely petition for review. McDonough v.
Department of Transportation , MSPB Docket No. PH-0752-19-0113-I-1, Petition
(0113 IAF), Tab 1. 3
for Review (0113 PFR) File, Tabs 1-6. Regarding his second removal, i.e., the
subject of this decision, the appellant argues that the administrative judge should
have merged the charges and that the agency failed to prove its charges. Id.
at 17-22, 27-28. The appellant also challenges the administrative judge’s
findings regarding his claims of a due process violation, harmful error, and the
reasonableness of the penalty. Id. at 13-17, 23-27. The agency has not filed a
response or cross petition for review. See 0113 PFR File, Tabs 8-11.
ANALYSIS
The administrative judge properly sustained the second removal action.
Regarding the second removal, the appellant argues that the administrative
judge should have merged the charges, 0113 PFR File, Tab 6 at 27-28, and he
challenges her findings regarding the agency’s proof of its charges, id. at 17-22.
The appellant also reasserts his due process violation claim, id. at 13-17, and his
harmful error claim, id. at 23-26. Lastly, the appellant challenges the
reasonableness of the agency’s penalty. Id. at 26-27. We have considered the
appellant’s arguments, but for the following reasons, we disagree.
The agency met its burden of proving the charged misconduct.
For its AWOL charge, the agency alleged that the appellant did not report
to work and was not in an approved leave status for portions of 2 days,
August 23, 2016, and September 25, 2016. 0113 IAF, Tab 3 at 34. To prove an
AWOL charge, an agency must demonstrate that the employee was absent without
authorization and, if the employee requested leave, that the request was properly
denied. Wilson v. Small Business Administration , 2024 MSPB 3, ¶ 7; Little v.
Department of Transportation , 112 M.S.P.R. 224, ¶ 6 (2009). The administrative
judge found that the agency met this burden, ID at 7-8, 16-22, and we agree.
It is undisputed that the appellant was scheduled to work on August 23,
2016, at 5:50 a.m., but he did not appear for work, call his first-line supervisor, or
submit any formal sick leave request until 9:20 a.m. on that date. E.g., ID4
at 16-18; 0113 IAF, Tab 4 at 36-37. It is also undisputed that the appellant was
scheduled to work on September 25, 2016, at 5:50 a.m., but he overslept and
failed to report to work until 7:40 a.m., at which point the appellant requested
that his schedule be retroactively amended so that he was not AWOL. ID
at 20-21; 0113 IAF, Tab 4 at 37.
Regarding the first date, August 23, 2016, the appellant argues that the
applicable collective bargaining agreement (CBA) and agency policy are both
silent as to the manner in which an individual must submit a sick leave request,
particularly when the request is somewhat unexpected or unplanned. 0113 PFR
File, Tab 6 at 17-18. He further argues that his text message to a few coworkers
the night before his absence should, therefore, be sufficient to conclude that he
had properly requested leave and was not AWOL. Id. at 18-22. That text
message, sent at 11:45 p.m. on August 22, 2016, stated as follows: “Dude I’ve
been feeling like crap since dinner him [sic] if I’m not up in time to call out
tomorrow can you put me down for sick leave.” 0156-I-2 AF, Tab 17 at 7-8.
We agree with the administrative judge’s well-reasoned analysis about the
adequacy of the appellant’s efforts to request leave. ID at 16-20. Among other
things, the administrative judge recognized that the text message the appellant
sent was ambiguous—it did not definitively request sick leave, nor did it suggest
that the appellant’s sickness would render him unable to wake up in time to
decide whether he would be able to appear for his 5:50 a.m. shift and alert the
agency accordingly. ID at 16-17. Moreover, when asked about this, the appellant
testified that he had been having trouble waking up to his alarm. He did not
assert that he was too sick to call in earlier on the morning of August 23, 2016,
nearer to the start of his shift. ID at 18 (referencing 0113 HT3 at 29 (testimony
of the appellant)). The appellant also failed to send the text message or any other
communication to his first-line supervisor until 9:20 a.m., hours after his shift
had already begun. ID at 16. According to his first-line supervisor and another
agency official, this was typical for the appellant—he was a good but unreliable5
Air Traffic Controller, particularly regarding opening shifts. ID at 19
(referencing 0113 HT1 at 20-21, 81 (testimony of first-line supervisor and
another manager)). In sum, we agree with the administrative judge’s conclusion
that the agency proved that the appellant was AWOL for the period at issue on
August 23, 2016.
Regarding the second date, September 25, 2016, the appellant argues that
the agency had retroactively changed employee shift hours in the past, so it
should have done so when he overslept and belatedly arrived for his shift.
0113 PFR File, Tab 6 at 22. The administrative judge addressed this argument
below. ID at 20-23. Among other things, she acknowledged evidence that the
agency did, at times, approve last-minute schedule changes when there was
extreme traffic or other extenuating circumstances and employees requested the
change in a timely manner. ID at 21-22. But there is no reason for us to
conclude that the agency was ever required to do so or required to do so in this
instance when the appellant overslept and did not even contact the agency until
more than an hour after the start of his shift. Accordingly, the appellant’s
arguments about this date on which he was charged AWOL are not convincing.
Turning to the agency’s failure to follow leave procedures charge, we note
that it concerns one of the same absences underlying the agency’s AWOL charge.
0113 IAF, Tab 3 at 34-35. Specifically, the agency alleged that the appellant
failed to follow leave procedures on August 23, 2016, because he did not report
for work or contact an appropriate official within 1 hour of his scheduled start
time to request unscheduled leave. Id. The administrative judge analyzed this
charge separately and found that the agency met its burden of proof. ID at 23.
On review, the appellant argues that the administrative judge should have
merged this charge with the AWOL charge. 0113 PFR File, Tab 6 at 27-28.
Although we agree, we find that the administrative judge’s error does not require
a different result in this appeal. 6
The Board will merge charges if they are based on the same conduct and
proof of one charge automatically constitutes proof of the other charge. Mann v.
Department of Health and Human Services , 78 M.S.P.R. 1, 7 (1998). In the
absence of any rebuttal from the agency regarding the appellant’s argument in
favor of merging these charges, it is not apparent to us why the charges should
not be merged. Proof of one of the agency’s charges would constitute proof of
the other. Accordingly, we find that the administrative judge should have merged
the charges. See Jones v. Department of Justice , 98 M.S.P.R. 86, ¶ 16 (2004)
(finding that an agency’s AWOL charge merged into its charge of failure to
follow instructions); Westmoreland v. Department of Veterans Affairs ,
83 M.S.P.R. 625, ¶ 6 (1999) (merging charges of failure to follow
leave-requesting procedures and AWOL), aff’d, 19 F. App’x 868 (Fed. Cir. 2001),
overruled on other grounds as recognized by Pickett v. Department of
Agriculture, 116 M.S.P.R. 439, ¶¶ 8-11 (2011).
The fact that one charge has been merged into another does not, however,
mean that the duplicative charge is not sustained, or that the appellant’s
misconduct somehow becomes less serious by virtue of the merger. Shiflett v.
Department of Justice , 98 M.S.P.R. 289, ¶ 12 (2005). And despite the appellant’s
suggestion to the contrary, the failure to merge the charges does not require
reversal or remand for a new penalty determination. 0113 PFR File, Tab 6
at 27-28; see Beaudoin v. Department of Veterans Affairs , 99 M.S.P.R. 489,
¶¶ 11-13, 18-23 (2005) (finding that the agency’s charges should have been
merged, but still deferring to the agency’s choice of penalty because it proved all
its charges); Shiflett, 98 M.S.P.R. 289, ¶ 12 (finding that, although an agency’s
charges should have been merged, this did not affect the penalty).7
The administrative judge correctly found that the appellant failed to prove his
affirmative defenses .
The appellant failed to prove that the agency violated his right to due
process.
Below, the administrative judge considered and rejected the appellant’s
five distinct allegations that he was denied due process with respect to his second
removal. ID at 30-36. On review, the appellant describes two alleged due
process violations. 0113 PFR File Tab 6 at 13-17. We will address them in turn.
First, the appellant argues that the agency effectively prevented him from
responding to the proposed removal. Id. at 14-15. In support of this allegation,
the appellant describes the following timeline of events: (1) the agency proposed
the second removal action in May 2018; (2) the appellant requested an extension
of time to respond and sought certain information, which the agency processed
through Freedom of Information Act (FOIA) channels and indicated that the
deadline for replying to the proposed removal was 15 days after the appellant
received “the releasable requested information from the FOIA office”; (3) the
agency’s FOIA office provided a response in October 2018, but the appellant
believed more information was forthcoming;4 and (4) the deciding official issued
his decision on the proposed removal in December 2018, without the appellant’s
receipt of a further FOIA response and without the appellant expecting him to
issue the decision. Id.
The administrative judge addressed this allegation below. ID at 30-32.
She found that, although the appellant may have been waiting on a further FOIA
response, the deciding official understandably considered the appellant’s request
for information to be a closed matter, clearing the way for his decision. Id.
Among other things, she noted that for many weeks after the October 2018 FOIA
response, the appellant called the deciding official’s office each day he was
scheduled to work, but neither the appellant nor his attorney ever gave the
4 At the time of his petition for review, the appellant suggested that he never received
any further FOIA response. 0113 PFR File, Tab 6 at 14.8
deciding official any indication that they were still awaiting more information or
were not replying to the proposed removal because they expected more
information. Id. We find no basis for concluding otherwise.
An agency’s failure to provide a tenured public employee with an
opportunity to respond, either in person or in writing, to an appealable agency
action that deprives him of his property right in his employment constitutes an
abridgement of his constitutional right to minimum due process of law.
Cleveland Board of Education v. Loudermill , 470 U.S. 532, 546 (1985). Here, the
agency did not deny the appellant that opportunity. The agency proposed the
appellant’s removal in May 2018, informing him of the right to respond. The
agency then waited approximately 7 months before issuing a decision, including
the promised 15 days following the FOIA response, along with several additional
weeks. E.g., 0113 IAF, Tab 3 at 11-16, 34-108, Tab 18 at 73-75. The appellant
could have submitted a response at any point during that extensive period, but he
did not. Although the appellant may have sincerely believed that an additional
FOIA response was forthcoming and thus delayed his response, we do not agree
that the deciding official should have known about his intentions in the absence
of evidence that the appellant communicated his intentions. See Flores v.
Department of Defense , 121 M.S.P.R. 287, ¶ 11 (2014) (finding that, in the
absence of any indication that the appellant made a reasonable effort to assert his
opportunity to respond, or that the agency denied him his right to respond through
action, negligence, or design, the appellant was not denied due process).
Turning to the other due process violation allegation presented on review,
the appellant argues that the deciding official improperly considered ex parte
information. 0113 PFR File, Tab 6 at 16-17. Specifically, the appellant argues
that the deciding official conducted his own research into the appellant’s alleged
sleep disorder to find that it was not a mitigating factor but failed to inform the
appellant of this research. Id. at 16-17, 96-98. This argument does not appear to
be among the five different due process claims the administrative judge addressed9
in the initial decision.5 ID at 30-36. In addition, it is neither among the due
process claims the appellant described in his prehearing submission nor
specifically described in the administrative judge’s prehearing summary of issues.
0113 IAF, Tab 18 at 8-10, Tab 20 at 7-9. However, the appellant raised it in his
closing oral arguments. 0113 IAF, Tab 43 at 25:00-27:00. Accordingly, we
modify the initial decision to address this argument, which is effectively the
appellant’s sixth basis for alleging that he was denied due process.
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, ¶ 23. An employee’s due process right to notice
extends to both ex parte information provided to a deciding official and
information personally known to the deciding official if the information was
considered in reaching the decision and was not previously disclosed to the
appellant. Id.
The appellant’s argument relies upon hearing testimony from the one
individual who served as the proposing and deciding official for both of the
appellant’s removals. E.g., 0113 PFR File, Tab 6 at 16-17, 96-98; 0113 IAF,
Tab 3 at 11, 34. That testimony is somewhat difficult to follow. The deciding
official seemed to indicate that the appellant requested an accommodation for a
sleep disorder and submitted some form of medical documentation, after which
the deciding official researched both the disorder and information about good
sleep hygiene referenced by the appellant’s physician. 0113 PFR File, Tab 6
at 96. Upon doing so, the deciding official reportedly decided that the appellant
had not provided sufficient evidence that he suffered from any medical condition.
Id. at 97. He seemed to indicate that this all occurred in the context of
5 The administrative judge did explicitly consider an allegation that the deciding official
improperly considered ex parte information in the form of a conversation between the
deciding official and the appellant’s former supervisor about the appellant’s
explanations for his alleged misconduct. ID at 33-34.10
considering the appellant’s request for accommodation, but during the same time
in which the appellant’s proposed removal was pending. Id. at 96-97. The
deciding official then provided confusing and seemingly conflicting answers
when twice asked whether any of this was considered in concert with his penalty
analysis for the proposed removal. Id. at 97-98.
Further confusing matters, the testimony to which the appellant has
directed us does not explicitly indicate whether the deciding official was
describing his actions related to the first removal, which the agency rescinded
because of its own discovery of ex parte communications, or the second removal,
which is currently before us. Id. at 96-98; see ID at 34. However, the context
strongly suggests that the deciding official was discussing the first removal. 0113
PFR File, Tab 6 at 96-98. That is because the deciding official described doing
this research after the appellant’s response and before his removal, but the
appellant has himself acknowledged that he only responded to the first removal.
Id. at 10-13, 96-98.
So, the situation is such that the deciding official seems to have conducted
some unexplained “research” about the appellant’s claim of a sleep disorder
before issuing his December 2016 decision to remove the appellant—a decision
which explicitly discusses this sleep disorder to find that it did not excuse the
appellant’s misconduct. E.g., 0113 IAF, Tab 4 at 10-11. However, the agency
rescinded that removal and the deciding official did not remove the appellant the
second time until 2 years later, in December 2018. 0113 IAF, Tab 3 at 11-16.
Being the same official, it is certainly possible that he relied upon prior
“research” from years earlier during the second removal action, but the appellant
has identified no evidence to support that conclusion. In fact, the December 2018
decision letter contains no mention of any medical condition. Id. Accordingly,
we find that the appellant has failed to prove that the deciding official relied on
ex parte information in the form of “research” he conducted 2 years earlier when
removing the appellant the second time.11
The appellant failed to prove that the agency committed a harmful error.
The appellant also reasserts on review one claim of a harmful procedural
error that he raised below. 0113 PFR File, Tab 6 at 23-26. To understand his
argument, it is important to note the following sequence of events: First, the
agency suspended the appellant in February 2016, and again in March 2016, for
separate instances of leave-related misconduct.6 0113 IAF, Tab 3 at 71-75
(February 2016 suspension), 77-80 (March 2016 suspension). Second, the
appellant engaged in more leave-related misconduct in August and September
2016, which formed the basis of the removal before us. 0156-I-2 AF, Tab 24
at 29. Third, the agency proposed the appellant’s removal for this latest
misconduct in October 2016, 0156 IAF, Tab 4 at 70-73, and effectuated that
removal in December 2016, id. at 27-34, but eventually rescinded the action in
April 2018, while the appellant was challenging that action before the Board,
0156-I-2 AF, Tab 24 at 11-12. Fourth, the agency issued its new proposal to
remove the appellant—the one underlying this appeal—in May 2018. Id. at 29.
According to the appellant, the agency erred by considering the February
and March 2016 suspensions as prior offenses for purposes of its May 2018
removal action because those suspensions were more than 2 years old by the time
of the second proposal to remove him. 0113 PFR File, Tab 6 at 23-26. He argues
that the agency’s actions were contrary to a CBA provision or at least the
agency’s past practices. Id.
Under the harmful error doctrine, an agency’s action is reversible only if an
employee proves a procedural error that substantially prejudiced his rights by
possibly affecting the agency’s decision. Dieter v. Department of Veterans
Affairs, 2022 MSPB 32, ¶ 20. Harmful error cannot be presumed; the employee
must show that the error was likely to have caused the agency to reach a
6 Although the appellant disputed the alleged conduct underlying these suspensions
below, he has not done so on review. See 0113, Tab 18 at 4; ID at 36-37.12
conclusion different from the one it would have reached in the absence or cure of
the error. Id.; 5 C.F.R. § 1201.4(r).
As the administrative judge correctly recognized, the CBA does not
altogether preclude the agency from relying on discipline that is more than
2 years old. ID at 37-38. It states that, “[i]n assessing penalties, consideration
will be given to the length of time that has elapsed from the date of any previous
offense. As a general guide, a two (2) year timeframe should be used in
determining freshness.” 0113 IAF, Tab 18 at 87. The plain language of that
provision indicates that it is a general guide, not an inflexible rule.
Even so, the appellant suggests that the CBA provision has been applied as
if it were a requirement, rather than a “general guide,” so the agency should be
bound by that past practice. 0113 PFR File, Tab 6 at 23-26. He recounts
testimony indicating that the agency does not consider prior discipline that is
more than 2 years old. Id. We have reviewed the referenced testimony, but we
are unpersuaded. The appellant relies on a small portion of hearing testimony
that provides little insight into how the agency has historically applied the CBA
provision, particularly in a case like this, where the misconduct all occurred in a
short period of time, but an adverse action was subject to a lengthy delay because
one action was rescinded and replaced with another. Id. Notably, the witness
upon whom the appellant relies indicated that he was not involved in the
appellant’s 2018 removal, and he suggested that he had not encountered a similar
scenario, where fresh discipline becomes stale while pending. 0113 HT1
at 141-42, 188, 214 (testimony of the Labor and Employee Relations Specialist).
Moreover, a more senior witness who was involved in the appellant’s removal
indicated that the CBA provision was not an inflexible rule. 0113 HT2 at 6,
39-45 (testimony of the Labor and Employee Relations Manager for the New
England Region). Finally, the official who served as the proposing and deciding
official for the 2016 and 2018 removal actions testified that he considered the
2018 removal to be a mere correction of the rescinded 2016 removal, so the13
appellant’s 2016 suspensions could still be relied upon as prior offenses.
0113 HT2 at 59, 80, 146-48 (testimony of the appellant’s second-level
supervisor).
It seems quite apparent that the CBA provision and the agency’s table of
penalties were intended to encourage progressive discipline for repeat offenses,
while allowing an individual the chance to earn a clean slate if they work for an
extended period without further missteps. 0113 IAF, Tab 3 at 59, Tab 18 at 87.
Here, though, the length of time between the appellant’s offenses was just
months, even if the final removal action was significantly delayed. The appellant
did not work for an extended period without further missteps; his removal was
merely delayed for procedural reasons. For all these reasons, we agree with the
administrative judge’s conclusion that the appellant has not proven a harmful
error.
Removal is a reasonable penalty .
The appellant’s final argument about the second removal action is that the
agency’s penalty was not reasonable. 0113 PFR File, Tab 6 at 26-27. But this
argument relies on the one above, regarding the CBA provision and past offenses.
The appellant reiterates his assertion that the misconduct underlying his removal
should be considered a first offense and, consequently, the Board should find his
removal to be an unreasonable penalty. Id. We disagree.
When all of an agency’s charges are sustained, the Board will review the
agency-imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discretion within the tolerable limits
of reasonableness. Thomas v. Department of the Army , 2022 MSPB 35, ¶ 19. 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 been properly exercised. Id. The Board will
modify or mitigate an agency-imposed penalty only when it finds that the agency14
failed to weigh the relevant factors or the penalty clearly exceeds the bounds of
reasonableness. Id.
In this case, the agency proved all the misconduct it alleged, and we
discern no basis for disturbing its choice of penalty. For the reasons discussed
above, we find that the agency properly considered the appellant’s prior
suspensions, despite the appellant’s arguments to the contrary. The appellant has
not shown that the agency failed to consider all the relevant factors and exercised
management discretion within the tolerable limits of reasonableness. See, e.g.,
Moxley v. Veterans Administration , 36 M.S.P.R. 345, 346-49 (1998) (finding
removal to be a reasonable penalty for 8 hours of AWOL when the employee had
two prior suspensions for similar misconduct).
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
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.15
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 you16
were affected by an action that is appealable to the Board and that 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. 17
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | McDonough_Pat_J_PH-0752-19-0113-I-1_Final_Order.pdf | 2024-08-09 | null | PH-0752-19-0113-I-1 | NP |
733 | https://www.mspb.gov/decisions/nonprecedential/Coutee_VeronicaAT-0752-22-0612-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VERONICA COUTEE,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-22-0612-I-1
DATE: August 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bradley R. Marshall , Mt. Pleasant, South Carolina, for the appellant.
Laura Kempin , Esquire, St. Petersburg, Florida, for the agency
Luis E. Ortiz , Esquire, Orlando, 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
sustained her removal. On petition for review, the appellant reargues that she
proved her affirmative defenses of EEO retaliation and disability discrimination,
and that the agency violated her due process rights. Generally, we grant petitions
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
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.
¶2On March 28, 2021, the appellant was reassigned to the position of
GS-2005-05 Supply Technician in Logistics at the Orlando VA Healthcare
System in Orlando, Florida.2 Initial Appeal File (IAF), Tab 6 at 120. On
November 9, 2021, the appellant requested 240 hours of advanced sick leave “due
to a medical condition,” which was later denied by several agency officials. IAF,
Tab 28 at 88. Around this time, the appellant filed a formal complaint of
discrimination against her supervisor alleging that she had been subjected to a
hostile work environment based on race, sex, national origin, disability, and
reprisal in August and September 2021.3 IAF, Tab 32 at 17, 19, 26. On
2 The appellant was reassigned to this position as a reasonable accommodation as part
of a settlement agreement with the agency in which she agreed to withdraw an Equal
Employment Opportunity (EEO) complaint against the agency’s Police Service (her
previous position). IAF, Tab 32 at 19, 26, 28.
3 The appellant alleged that the supervisor subjected her to a hostile work environment
by stating that overtime must be COVID-19 related, by stopping providing her training
in her new position, by moving her to a different office, and by “instructing” her that
her reasonable accommodation and FMLA had expired and to email him only regarding
those matters. IAF, Tab 32 at 17-18. With regard to the latter claim, it seems that the
appellant’s complaint concerned the supervisor’s request for a copy of the reasonable2
December 23, 2021, the appellant stopped reporting for work. IAF, Tab 6 at 98,
Tab 28 at 85. On or around February 22, 2022, the appellant claims that she filed
for disability retirement. IAF, Tab 28 at 6, 85. It appears that sometime in
February 2022, or on April 1, 2022, the appellant requested leave without pay
(LWOP) for 1 year, beginning February 23, 2022, and ending February 23, 2023,
for unspecified medical conditions, which several agency officials later denied
due to “supply chain resource deficit incurred.” IAF, Tab 28 at 85, Tab 32
at 14-15. On May 2, 2022, the agency mailed the appellant a Return to Duty
Order notifying her that she had been absent without leave for 448 hours and had
not submitted a proper request for leave to cover her absences and ordering her to
return to duty the next day or to contact her supervisor to request leave. IAF, Tab
6 at 98-100. The letter also informed the appellant, among other things, how to
request leave under the Family and Medical Leave Act (FMLA) or a reasonable
accommodation. Id. at 98-99. The appellant did not respond to the order or to
the supervisor’s subsequent attempts to contact her and advise her of her right to
leave under FMLA. Id. at 41, 56.
¶3By letter dated August 12, 2022, the supervisor proposed the appellant’s
removal for absence without leave (AWOL) (18 specifications), failure to follow
leave requesting procedures (18 specifications), and failure to follow instructions
(one specification). Id. at 35-45. The first charge alleged that the appellant was
absent without authority on several specific calendar days between February 14
and July 1, 2022;4 the second charge alleged that the appellant was absent without
authority and did not request leave for those same days; and the third charge
alleged that the appellant failed to follow the May 2, 2022 Return to Duty notice.
Id. at 35-41. The appellant did not provide an oral or written reply within the
14-day window provided by the notice of proposed removal. See id. at 18, 27-33,
accommodation in place for her. Id. at 31-33.
4 The proposal notice erroneously notes the year as 2021 in some of the specifications.
See IAF, Tab 6 at 7, 35, 38.3
42. By letter dated September 1, 2022, the deciding official, the Acting Medical
Center Director/CEO, notified the appellant that she had sustained the charges
and removed the appellant effective September 15, 2022. Id. at 18-24.
¶4The appellant filed the instant Board appeal. IAF, Tab 1. After holding the
requested hearing, the administrative judge issued an initial decision affirming
the agency’s removal action. IAF, Tab 40, Initial Decision (ID) at 1, 21. The
administrative judge first sustained the AWOL charge after finding that the
agency proved 5 of the 18 specifications. ID at 2-6. In analyzing this charge, the
administrative judge noted that the record contained a February 10, 2022 letter
from the appellant’s licensed mental health counselor recommending that she take
leave from work due to burn out, as well as a February 17, 2022 FMLA request
signed by the counselor indicating that the appellant had chronic and permanent
or long-term conditions including generalized anxiety and post-traumatic stress
disorder, along with the appellant’s request for LWOP from February 23, 2022,
through February 23, 2023. ID at 3-6; see also IAF, Tab 32 at 14-15; IAF, Tab
28 at 90; IAF, Tab 31 at 4-7. The administrative judge explained that it was
unclear whether or when the appellant submitted these additional documents to
the agency, but he found it highly likely that she had provided them to her
management chain and that the appellant’s year-long LWOP request constituted a
de facto request for FMLA leave. ID at 4-6. The administrative judge concluded
that the agency erred in failing to grant the appellant up to 12 weeks of FMLA
leave for the period of February 22through May 17, 2022 and thus only sustained
the specifications regarding the period before the appellant’s LWOP request and
after the expiration of her FMLA entitlement.5 ID at 5-6.
¶5The administrative judge also sustained the related specifications of the
second charge of failure to follow leave requesting procedures, finding that this
5 The administrative judge recognized that although the period he found covered by
FMLA leave was inexact, the salient point was that many of the specifications were
invalid because the appellant was entitled to a substantial amount of FMLA leave
during the period covered by those specifications. ID at 6 n.5.4
charge was based on the same facts underlying the AWOL charge, and suffered
from the same issues as the identically dated specifications in that charge, and
that it thus merged with the AWOL charge. ID at 6-8. He also found that the
agency proved the third charge of failure to follow instructions. ID at 8-9. The
administrative judge then considered and found that the appellant failed to prove
her affirmative defenses of EEO reprisal, ID at 9-11, disability discrimination, ID
at 11-14, and violation of her due process rights, ID at 14-15.6 He thereafter
found that the agency proved nexus, ID at 15-16, but that the agency misapplied
certain Douglas factors and thus he would not defer to the agency’s penalty
determination, ID at 16-21; see also Douglas v. Veterans Administration ,
5 M.S.P.R. 280, 305-06 (1981) (articulating a nonexhaustive list of 12 relevant
factors to be considered in determining the appropriateness of an imposed
penalty). After conducting his own Douglas factors analysis, the administrative
judge found that the seriousness of the appellant’s misconduct, combined with
other factors, supported the agency’s action and that removal was within the
tolerable limits of reasonableness. ID at 16-21.
¶6The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency filed a response. PFR File, Tab 3.
¶7On review, the appellant reargues that she proved her affirmative defenses
of EEO retaliation, PFR File, Tab 1 at 18-22, and disability discrimination, id.
at 22-24, and that the agency violated her due process rights, id. at 12-18. She
does not dispute the administrative judge’s finding that the agency proved all
three of its charges, his finding that the agency proved nexus, or his analysis of
the Douglas factors and conclusion that removal was within the tolerable limits of
reasonableness. With respect to these issues, the record reflects that the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions, and we therefore discern to reason to
6 At the hearing, the appellant withdrew her other affirmative defenses of harmful
procedural error, race, sex, and age discrimination. ID at 9.5
disturb his findings. See, e.g., Clay v. Department of the Army , 123 M.S.P.R.
245, ¶ 6 (2016) (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). We have considered the appellant’s arguments that
she proved her affirmative defense of EEO retaliation, and that the agency
violated her due process rights, however, we find them unavailing, and they do
not provide a reason to disturb the initial decision.
¶8We also find that the appellant did not show that the administrative judge
erred in finding that she did not prove her affirmative defense of disability
discrimination. On review, the appellant briefly alleges that she proved that the
agency discriminated against her based on her disability. PFR File, Tab 1 at 22.
Below, the appellant did not provide much detail at all regarding this claim, even
though the administrative judge properly notified her of the requirements to
establish an affirmative defense of reasonable accommodation, disparate
treatment, or disparate impact disability discrimination. See IAF, Tab 1 at 7,
Tab 28 at 13, Tab 34 at 2. Based on the initial decision, the administrative judge
interpreted her argument as a claim of denial of reasonable accommodation. See
ID at 11-13. In this regard, an agency is required to make reasonable
accommodation to the known physical and mental limitations of an otherwise
qualified individual with a disability unless the agency can show that
accommodation would cause an undue hardship on its business operations.
29 C.F.R. § 1630.9(a); Miller v. Department of the Army , 121 M.S.P.R. 189, ¶ 13
(2014). In order to establish disability discrimination based on a failure to
accommodate, an employee must show that: (1) she is an individual with a
disability, as defined by 29 C.F.R. § 1630.2(g); (2) she is a qualified individual
with a disability, as defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed
to provide a reasonable accommodation. Miller, 121 M.S.P.R. 189, ¶ 13. A
qualified individual with a disability is one who can “perform the essential
functions of the . . . position that such individual holds or desires” with or6
without accommodation. Haas v. Department of Homeland Security , 2022 MSPB
36, ¶ 28; 42 U.S.C. § 12111(8); see 29 C.F.R. § 1630.2(m). Notably, both a claim
of disability discrimination based on an agency’s failure to reasonably
accommodate and a claim based on an individual’s status as disabled require that
the individual be “qualified.” Haas, 2022 MSPB 36, ¶ 28.
¶9In the initial decision, the administrative judge stated that the appellant did
not characterize her year-long LWOP request or her FMLA application as
requests for reasonable accommodation, but that to the extent that she was
contending as much, he was unpersuaded. ID at 13-14. He noted the February
10, 2022 letter from the appellant’s licensed mental health counselor
recommending that she take leave due to burnout and the February 17, 2022
FMLA request in which the appellant’s counselor indicated that the appellant had
generalized anxiety and post-traumatic stress disorder that rendered her
“incapacitated for a continuous period of time” and “not able” to perform the
essential functions of her job. ID at 13; see also IAF, Tab 28 at 90, Tab 31
at 4-7. He also noted that the appellant testified that she applied and was
approved for disability retirement, and he discussed the definition of disabled in
the disability retirement context. ID at 13. The administrative judge then stated
that the Board has held that coming to work on a regularly scheduled basis is an
essential function of almost every government job, and he concluded that the
appellant’s medical conditions—which he pointed out prevented her from
maintaining her attendance at work and which she testified enabled approval of
her disability retirement application—prevent her from being considered a
qualified person with a disability.7 ID at 14 (citing Stevens v. Department of the
Army, 73 M.S.P.R. 619 (1997)).
¶10In her petition for review, the appellant does not address or directly dispute
any of the administrative judge’s findings, or his characterization of her
7 However, the administrative judge also noted that there is no record evidence of
OPM’s purported approval of the appellant’s disability retirement application, and the
appellant testified she has not yet received disability retirement benefits. ID at 13 n.8.7
argument. See PFR File, Tab 1 at 22-24. Instead, she claims that the supervisor
improperly denied her leave and telework “despite the fact it had been previously
approved as a reasonable accommodation,” and that the supervisor was “aware of
the disability and reasonable accommodation but claimed he did not know it was
still in effect when clearly he did.” Id. at 22-23. This argument is unclear, and
upon review of the record and relevant hearing testimony, we are unsure what the
appellant is arguing with respect to this affirmative defense. In addition,
although the appellant alleges the supervisor denied her telework, the
administrative judge found that there was no dispute that the appellant was on
full-time telework. ID at 17. The appellant and her representative are quite
vague when they reference her “disability,” “reasonable accommodation,” and
leave requests throughout the record, hearing, and on review. See Tines v.
Department of the Air Force , 56 M.S.P.R. 90, 92 (1992) (finding that a petition
for review must contain sufficient specificity to enable the Board to ascertain
whether there is a more serious evidentiary challenge justifying a complete
review of the record).
¶11On review, the appellant also seems to be claiming that the supervisor
discriminated against her based on her disability when he asked for a copy of the
appellant’s reasonable accommodation restrictions when he took over as her
supervisor. PFR File, Tab 1 at 23. As noted above, the appellant was reassigned
to the Supply Technician position as a reasonable accommodation in exchange for
withdrawing a prior EEO complaint. See supra note 2. To the extent that this is
what the appellant is attempting to argue on review, she did not argue this below
—or at least do so coherently—and 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). 8
¶12We also do not see where the appellant presented an argument below that
the agency’s denial of her year-long request for LWOP was a denial of a
reasonable accommodation. See ID at 14. The administrative judge appears to
have construed the appellant’s claims very liberally. However, we agree with the
administrative judge that the appellant did not prove that she is a qualified
individual with a disability. ID at 14; see Haas, 2022 MSPB 36, ¶ 28; Miller,
121 M.S.P.R. 189, ¶ 13. It is the appellant’s burden to show that she is an
individual with a disability who can perform the essential functions of her
position with or without accommodation. Haas, 2022 MSPB 36, ¶ 28. Here, the
evidence indicates that the appellant cannot perform the essential functions of her
position, and she does not provide any evidence or argument to the contrary. As
the administrative judge pointed out, the record shows that the appellant’s
counselor indicated in the February 2022 FMLA request that the appellant “will
be incapacitated for a continuous period of time” and “is not able” to perform the
essential functions of her job due to her generalized anxiety and post-traumatic
stress disorder, and the appellant stated that she applied, and was approved for,
disability retirement due to the severity of her symptoms. IAF, Tab 31 at 4-7,
Tab 28 at 85; ID at 13.
¶13With regard to the appellant’s request for 1 year of LWOP, we note that
while there are no “magic words” that an employee must use to request a
reasonable accommodation, the employee must explain that she is requesting an
adjustment or modification to working conditions or duties to assist with her
disability. Patton v. Jacobs Engineering Group , 874 F.3d 437, 444 (5th Cir.
2017); see Foster v. Mountain Coal Company , 830 F.3d 1178, 1188 (10th Cir.
2016) (explaining that a reasonable accommodation request “must make clear that
the employee wants assistance for his or her disability”); Ballard v. Rubin ,
284 F.3d 957, 962 (8th Cir. 2002) (stating that while there are no magic words
needed to request a reasonable accommodation, the employee must make clear9
that he wants assistance for his disability).8 We acknowledge that a request for
LWOP for a specific period of time may be a reasonable accommodation
depending on the particular circumstances in a given case. See EEOC v. Journal
Disposition Corp. , No. 10–CV–886, 2011 WL 5118735, at *3 (W.D. Mich. Oct.
27, 2011); Woodruff v. LaHood , 777 F.Supp.2d 33, 44 (D.D.C. 2011).9 However,
the purpose of a reasonable accommodation is to assist an individual with their
disability and enable them to perform the essential functions of their position.
29 C.F.R. § 1630.2(o)(1)(ii). The appellant has not explained, and we cannot
discern from the record, how 1 year of LWOP would enable her to perform the
essential functions of her position. Neither the appellant nor her counselor
explains how it would be an effective remedy. Furthermore, the appellant’s
counselor was noncommittal about how long the appellant’s condition is expected
to last. IAF, Tab 36-2 at 28:00 (hearing testimony of K. Vankorlaar); see also
Hilda H. v. Department of Veterans Affairs , EEOC Appeal No. 0120162443, 2018
WL 1392246, at *4 (Mar. 6, 2018), req. to reconsider denied , EEOC Request No.
0520180318, 2018 WL 3584199 (July 3, 2018) (stating that LWOP for an
indefinite period of time with absolutely no indication that one will or could
return is not an accommodation contemplated under the Rehabilitation Act).
¶14In sum, to the extent that the appellant argued that the agency failed to
reasonably accommodate her, or otherwise discriminated against her, she has not
proven that she is a qualified individual with a disability. Haas, 2022 MSPB 36,
¶ 28; Miller, 121 M.S.P.R. 189, ¶ 13. Thus, we agree with the administrative
8 Decisions of courts other than the U.S. Court of Appeals for the Federal Circuit,
although not binding, may be followed if the Board finds the reasoning persuasive.
Mynard v. Office of Personnel Management , 108 M.S.P.R. 58, ¶ 14 (2008).
9 Although decisions from the Equal Employment Opportunity Commission (EEOC) are
not binding, the Board generally defers to the EEOC on issues of substantive
discrimination law unless the EEOC’s decision rests on civil service law for its support
or is so unreasonable that it amounts to a violation of civil service law. Southerland v.
Department of Defense , 119 M.S.P.R. 566, ¶ 20 (2013), overruled on other grounds by
Pridgen v. Office of Management and Budget , 2022 MPSB 31.10
judge that the appellant’s disability discrimination affirmative defense fails. See
Wickramasekera v. Veterans Administration , 21 M.S.P.R. 707, 714 (1984)
(declining to disturb a finding on the basis of an undeveloped and unsupported
argument).
NOTICE OF APPEAL RIGHTS10
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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.11
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 on12
race, color, religion, sex, 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) or13
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.11 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
11 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 14
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 | Coutee_VeronicaAT-0752-22-0612-I-1_Final_Order.pdf | 2024-08-09 | VERONICA COUTEE v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-22-0612-I-1, August 9, 2024 | AT-0752-22-0612-I-1 | NP |
734 | https://www.mspb.gov/decisions/nonprecedential/Katz_Michael_J_NY-1221-16-0042-W-1_and_NY-1221-17-0056-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL J. KATZ,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBERS
NY-1221-16-0042-W-1
NY-1221-17-0056-W-1
DATE: August 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Richard E Condit , Esquire, and Joanna K. Wasik , Esquire,
Washington, D.C., for the appellant.
Jack P. DiTeodoro , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed petitions for review of the initial decisions that
denied his requests for corrective action in these two individual right of action
(IRA) appeals, Katz v. Department of Veterans Affairs , MSPB Docket No. NY-
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
1221-16-0042-W-1 (0042 appeal), and Katz v. Department of Veterans Affairs ,
MSPB Docket No. NY-1221-17-0056-W-1 (0056 appeal) . Generally, we grant
petitions such as these only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
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). We JOIN these appeals under 5 C.F.R. § 1201.36(b) because joinder
will expedite processing of the cases and will not adversely affect the interests of
the parties. After fully considering the filings in these appeals, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petitions for review. Therefore, we DENY the petitions for review and
AFFIRM the initial decisions, which are now the Board’s final decisions.
5 C.F.R. § 1201.113(b). Except as expressly MODIFIED to clarify the
administrative judge’s analysis of the factors set forth in Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), in both appeals , we
AFFIRM the initial decisions.
BACKGROUND
¶2In July 2014, the agency selected the appellant as Chief of Orthopedic
Surgery for the Brooklyn Campus of the agency’s New York Harbor Healthcare
System (NY Harbor). Katz v. Department of Veterans Affairs , MSPB Docket
No. NY-1221-16-0042-W-1, Initial Appeal File (0042 IAF), Tab 110 at 65. The
original SF-50 documenting the appointment indicated that this was a permanent
position. 0042 IAF, Tab 50 at 3. The agency subsequently “corrected” the SF-502
to indicate that the appointment was temporary and not to exceed November 3,
2015. 0042 IAF, Tab 109 at 130. Effective July 17, 2015, the agency terminated
the appointment. 0042 IAF, Tab 13 at 3, Tab 109 at 145.
¶3On November 10, 2015, the appellant filed an IRA appeal with the Board,
claiming that the agency terminated his appointment in retaliation for protected
whistleblowing. 0042 IAF, Tab 1. While that appeal was still pending, on
December 20, 2016, the appellant filed a second IRA appeal, claiming that the
agency had changed his appointment status from permanent to temporary in
retaliation for the whistleblowing that was the subject of his previous Office of
Special Counsel (OSC) complaint and for initiating proceedings before OSC, the
agency’s Office of Resolution Management, and the Board. Katz v. Department
of Veterans Affairs , MSPB Docket No. NY-1221-17-0056-W-1, Initial Appeal
File (0056 IAF), Tab 1.
¶4The administrative judge found that the Board has jurisdiction over both
appeals. 0042 IAF, Tab 10; 0056 IAF, Tab 10. After a 3-day hearing that
encompassed both appeals, the administrative judge issued separate initial
decisions denying the appellant’s requests for corrective action. 0042 IAF,
Tab 142, Initial Decision (0042 ID) at 27; 0056 IAF, Tab 64, Initial Decision
(0056 ID) at 21. In each initial decision, the administrative judge found that the
appellant proved that he made protected disclosures that were contributing factors
in the action at issue, but the agency proved by clear and convincing evidence
that it would have taken these same actions absent the protected disclosures.
0042 ID at 19-27; 0056 ID at 17-21.
¶5The appellant has filed petitions for review of both initial decisions, the
agency has filed responses to the appellant’s petitions, and the appellant has filed
replies to both responses. Katz v. Department of Veterans Affairs , MSPB Docket
No. NY-1221-16-0042-W-1, Petition for Review (0042 PFR) File, Tabs 3, 5-6;
Katz v. Department of Veterans Affairs , MSPB Docket No. NY-1221-17-0056-
W-1, Petition for Review (0056 PFR) File, Tabs 3, 5-6.3
DISCUSSION OF ARGUMENTS ON REVIEW
¶6On petition for review in the first appeal, the appellant challenges the
administrative judge’s credibility findings, arguing that she failed to make
specific credibility determinations and improperly relied on witness testimony
that was internally inconsistent or was contradicted by other evidence in the
record. 0042 PFR File, Tab 3 at 22-29. He also argues that the administrative
judge made factual findings that were inconsistent with the record evidence. Id.
at 9-17. Additionally, he argues that the administrative judge erred by concluding
that the agency proved by clear and convincing evidence that it would have
terminated his appointment in the absence of his protected whistleblowing. Id.
at 17-22.
¶7On petition for review in the second appeal, the appellant again challenges
the administrative judge’s credibility determinations. 0056 PFR File, Tab 3
at 15-21. He also argues that the administrative judge erred by concluding that
the agency met its burden of proving by clear and convincing evidence that it
would have changed his appointment type in the absence of his protected
whistleblowing activity. Id. at 8-15.
The administrative judge made reasoned credibility determinations, and the
factual findings are supported by the record.
¶8The appellant’s challenges to the administrative judge’s factual findings and
credibility determinations do not warrant reaching a different conclusion here.
The Board will 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). Mere disagreement with an administrative
judge’s credibility determinations and findings of fact does not provide a basis
for granting review. Diggs v. Department of Housing and Urban Development ,
114 M.S.P.R. 464, ¶ 8 (2010).4
¶9In this case, the administrative judge did not make explicit demeanor -based
credibility determinations. However, by crediting the testimony of witnesses
whom she observed at hearing, she made implicit demeanor-based credibility
determinations to which the Board must give deference. See Purifoy v.
Department of Veterans Affairs , 838 F.3d 1367, 1373 (2016); Little v. Department
of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009) (concluding that, when an
administrative judge has heard live testimony, his credibility determinations must
be deemed to be at least implicitly based upon the demeanor of the witnesses).
The appellant’s specific credibility challenges do not warrant setting aside that
deference. For example, in the petition for review of the first Board appeal, the
appellant argues that the Chief of Staff’s testimony that he was the sole official
responsible for initiating the appellant’s termination was inconsistent with his
prior testimony during an equal employment opportunity (EEO) investigation
stating that other agency officials were involved in the decision. 0042 PFR File,
Tab 3 at 23-24. The appellant mischaracterizes this testimony. In the EEO
investigation, the Chief of Staff testified that he was the person who issued the
recommendation that the appellant be terminated and that NY Harbor’s Director
was the deciding official on the termination decision. 0042 IAF, Tab 113
at 112-13. During the hearing, the Chief of Staff testified that he was responsible
for “initiating the termination” of the appellant’s employment. HT2 at 201-02
(testimony of the Chief of Staff). The Chief of Staff’s statement during the EEO
investigation that other officials also “recommended” that the appellant be
terminated was addressing the general support for the appellant’s termination in
the supervisory chain within the agency’s work unit as opposed to any formal
involvement in the termination process. 0042 IAF, Tab 113 at 112-13 .
Accordingly, there is no inconsistency in the identified testimony.
¶10The same is true of the testimony from the Chief of Surgery. 0042 PFR
File, Tab 3 at 26-27. The appellant cites the Chief of Surgery’s prior deposition
testimony stating that he “recommended” that the appellant’s appointment be5
terminated. However, the Chief of Surgery noted in his deposition that his
recommendation was not made as a part of the formal termination process
because he lacked any actual authority to terminate the appellant. He
acknowledged instead that the Chief of Staff and the appropriate Human
Resources officials were responsible for that determination. 0042 IAF, Tab 114
at 375-76. This testimony was also consistent with the Chief of Surgery’s hearing
testimony acknowledging that only the Chief of Staff or the Director could
terminate the appellant.2 Hearing Transcript, Day 2 (HT2) at 287-89 (testimony
of the Chief of Surgery).
¶11The appellant also argues that the administrative judge disregarded evidence
that he was not required to perform surgeries in his position and that he notified
the agency prior to his appointment that he had not performed major surgeries for
many years. 0042 PFR File, Tab 3 at 10-12. However, the administrative judge
specifically addressed the agency’s “incompetence” throughout the hiring process
in the initial decision, highlighting testimony from agency hiring officials
admitting that a “perfunctory” and inadequate vetting process caused it to hire the
appellant despite his inadequate qualifications. 0042 ID at 21-23. The
appellant’s disagreement with the administrative judge’s findings in this regard
do not warrant review. Diggs, 114 M.S.P.R. 464, ¶ 8.
¶12We also disagree with the appellant’s argument that the administrative
judge made an erroneous factual finding concerning whether he received a full
faculty appointment. 0042 PFR File, Tab 3 at 14-17. The appellant argues that
the administrative judge mischaracterized deposition testimony from the New
York Downstate College of Medicine (SUNY)’s Acting Dean, stating that the ad
hoc committee had declined to proceed with a full faculty appointment for the
2 The appellant quotes hearing testimony from the Chief of Surgery acknowledging that
he might have suggested to the appellant that he resign. 0042 PFR File, Tab 3 at 26-27
However, the cited testimony notably omits the Chief of Surgery’s testimony
responding, “No, sir,” when asked whether he had fired the appellant. Hearing
Transcript, Day 2 at 287 (testimony of the Chief of Surgery).6
appellant. He cites her deposition testimony that she “[did not] know for sure”
whether the appellant was ever given full admitting privileges. Id. at 15-16;
0042 IAF, Tab 114 at 583. The appellant also cites a letter showing that he had
received a permanent faculty appointment that remained in effect at the time of
his termination. 0042 PFR File, Tab 3 at 16-17; 0042 IAF, Tab 112 at 71.
¶13However, as the administrative judge correctly noted, the Acting Dean also
testified in her deposition that SUNY’s Orthopedics Department would have put
together an ad hoc committee to review the appellant’s qualifications for
consideration for a full faculty appointment. 0042 ID at 11; 0042 IAF, Tab 114
at 577. The Acting Dean acknowledged that she did not remember what
happened with respect to the appellant’s application for a full faculty
appointment. However, she thought that “the ad hoc committee met and were not
inclined to put [a full faculty appointment] forward,” even if she did not know
what happened after that. 0042 IAF, Tab 114 at 577-78. Elsewhere in her
deposition, the Acting Dean testified that she remembered that SUNY’s
Department of Orthopedics “did not want to give [the appellant] a faculty
appointment because they didn’t think he was qualified,” and that she “probably
communicated that to [the Chief of Staff] that it did not look good.” 0042 IAF,
Tab 114 at 570.
¶14Continuing, the administrative judge cited testimony from the Chief of Staff
and Chief of Surgery, confirming that the Acting Dean informed them that the
appellant would not receive a full faculty appointment. 0042 ID at 11-12; HT2
at 207-08 (testimony of the Chief of Staff), 288-91 (testimony of the Chief of
Surgery). Accordingly, the administrative judge properly concluded, based on the
testimony from numerous agency officials, that the appellant had not received a
full faculty appointment at the time of his termination.
¶15For the first time during Board proceedings, the appellant produced an
unsigned and unauthenticated letter, stating that he had received a
voluntary/temporary appointment with SUNY, effective January 29, 2015.7
0042 IAF, Tab 112 at 71, Tab 136 at 27. The administrative judge found that this
letter had little evidentiary weight, and we agree. 0042 ID at 23-25. As the
administrative judge observed, the deciding official provided unrebutted
testimony that she was unaware of the existence of the letter at the time she made
her termination decision, and the appellant did not call the author of the letter or
anyone else who might have information about the letter to testify at the hearing.
0042 ID at 15-16, 23-24. Accordingly, the appellant’s challenges to the
administrative judge’s factual findings and credibility determinations do not
provide a basis for disturbing the initial decisions.
We agree that the agency proved by clear and convincing evidence that it would
have taken both personnel actions in the absence of the appellant’s protected
disclosures and activity but modify the administrative judge’s reasoning.
¶16In Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir.
1999), the U.S. Court of Appeals for the Federal Circuit set forth a number of
factors the Board should consider in determining whether the agency met its
burden of proving by clear and convincing evidence that it would have taken the
challenged action in the absence of the appellant’s protected whistleblowing
activity, including the following: (1) the strength of the agency’s evidence in
support of the action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials who were involved in the decision; and (3) any
evidence that the agency takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. For the reasons
explained in the initial decision, we agree with the administrative judge that the
agency met its burden. However, we modify the initial decisions to explain this
finding more fully.
0042 appeal
¶17In the first appeal, the administrative judge concluded that the first Carr
factor, which concerns the strength of the agency’s evidence in support of its
action, favored the agency. 0042 ID at 21-25. She also found that there was no8
evidence that any of the agency officials involved in the appellant’s termination
had any motive to retaliate against him, and so the second Carr factor also
favored the agency. Id. at 25-27. Finally, she concluded that the record was
devoid of any evidence indicating that the agency treated non-whistleblowers
more leniently than whistleblowers. Id. at 27.
¶18In his petition for review in the first appeal, the appellant argues that the
administrative judge erred by concluding that the agency met its burden of
proving by clear and convincing evidence that it would have terminated him even
in the absence of his protected whistleblowing. 0042 PFR File, Tab 3 at 17-22.
Specifically, he argues that the administrative judge incorrectly determined under
the first Carr factor that the agency’s reasons for terminating him were strong.
0042 PFR File, Tab 3 at 18-19. However, he does not challenge the
administrative judge’s findings regarding the second Carr factor in the first
appeal.3 Finally, he argues that because the record was devoid of any evidence
regarding whether the agency treated similarly situated non -whistleblowers more
leniently, the administrative judge should have concluded that the third Carr
factor weighed against the agency. Id. at 21-22.
¶19We agree with the administrative judge that the agency’s reasons for
terminating the appellant were strong. As set forth in greater detail in the initial
decision, the evidence clearly demonstrates that the agency hired the appellant to
this position with the expectation that he would be able to perform major
orthopedic surgeries and supervise surgical residents, and he was unable to
adequately complete either function during the course of his employment with the
agency. ID at 21-22; HT2 at 210-11 (testimony of the Chief of Staff stating that
he would not have hired the appellant if he had realized that it had been 20 years
3 Although the appellant’s petition for review in the first appeal includes a section
addressing the second Carr factor, the arguments contained therein exclusively address
the allegedly retaliatory motive of agency officials concerning the change in the
appellant’s appointment status, which is the subject of the second Board appeal.
0042 PFR File, Tab 3 at 19-21. We have addressed those arguments in the appropriate
section of this decision.9
since he last performed surgery and that he made a mistake in hiring him); HT1
at 110-11 (testimony of the appellant) (acknowledging that at the time of his
appointment, he had not performed surgery since the mid-1990s). Additionally,
as the administrative judge also correctly observed, at the time of the termination
decision, the relevant agency officials had no reason to believe that the appellant
had received a full faculty appointment with SUNY Downstate, as required to
fulfill the duties of the position. 0042 ID at 24-25; 0042 IAF, Tab 112 at 46;
Tab 114 at 34-35.
¶20Regarding the third Carr factor, although the administrative judge
acknowledged that there was no evidence concerning the agency’s treatment of
similarly situated non-whistleblowers, she did not specifically identify whether
this factor favored the agency or the appellant. 0042 ID at 27. An agency’s
failure to produce relevant evidence on Carr factor 3 “cannot support the
agency.” Smith v. General Services Administration , 930 F.3d 1359, 1367 (Fed.
Cir. 2019). However, we have no reason to believe that the unique circumstances
that caused the agency to change the appellant’s appointment status and terminate
him occurred in other instances. In the complete absence of evidence that
similarly situated non-whistleblower comparators exist, the Board has found Carr
factor 3 to be neutral. Karnes v. Department of Justice , 2023 MSPB 12, ¶ 36.
We find it appropriate to do the same here. Accordingly, we modify the initial
decision to clarify that the absence of evidence on the third Carr factor renders
that factor neutral. Overall, based on the administrative judge’s findings that
Carr factors 1 and 2 favored the agency and our finding that the absence of
evidence regarding Carr factor 3 is neutral, we agree with her conclusion that the
agency proved by clear and convincing evidence that it would have terminated the
appellant absent his whistleblowing disclosures or protected activities. 0042 ID
at 21-27; see Haebe, 288 F.3d at 1301.10
0056 appeal
¶21In addressing whether the agency met its clear and convincing evidence
burden in the second appeal, the administrative judge summarized the testimony
from the Labor Relations Chief and the Human Resources Specialist explaining
why the appellant’s appointment type was changed from permanent to temporary.
0056 ID at 19-21. She also highlighted evidence in the record supporting the
decision to re-code the appointment and identified a potential ambiguity in the
agency’s bylaws concerning how to properly code the appellant’s appointment
type. Id. at 20-21. However, she did not make a specific finding as to whether
the first Carr factor weighed in favor of the agency or the appellant. Regarding
the second Carr factor, the administrative judge concluded that there was no
evidence that the agency officials involved in the decision to change the
appellant’s appointment type had any motive to retaliate against him. Id. at 21.
Finally, regarding the third Carr factor, the administrative judge observed that
there was no evidence in the record indicating that the agency treated
non-whistleblowers more leniently than whistleblowers. Id.
¶22We modify the initial decision to find that the first Carr factor favors the
agency. In discussing the strength of the agency’s evidence, the administrative
judge relied on the testimony from the Labor Relations Chief stating that, at the
time she made the change, she was relying on the language in the Personnel
Standards and Credentialing Board (PSCB) action stating that the appellant had
been recommended for a “temporary appointment.” 0056 ID at 20. The
administrative judge acknowledged that the agency’s bylaws specified that the
agency was ultimately responsible for determining the nature of the appointment,
but she also cited testimony from the human resources officials stating that, in
determining a physician’s appointment type, they relied on the language in the
PSCB action. 0056 ID at 20-21; 0042 IAF, Tab 114 at 1021-22 (deposition
testimony of the Human Resources Specialist), 821-23 (deposition testimony of11
the Labor Relations Chief); HT3 at 322-33, 371 (testimony of the Labor Relations
Chief).
¶23The appellant argues on review that the Labor Relations Chief
acknowledged during the hearing that she may have been mistaken about her
interpretation of the language in the PCSB action and that the administrative
judge erred by failing to consider this testimony. 0056 PFR File, Tab 3 at 19-20.
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. 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). Additionally, the Labor Relation Chief’s
acknowledgement that she may have been mistaken about the import of the
language in the PCSB action when faced with the conflicting language in the
agency’s bylaws several years later does not diminish the strength of her stated
reason for changing the appointment type at the time she took the action. See
Yunus v. Department of Veterans Affairs , 242 F.3d 1367, 1372 (Fed. Cir. 2001)
(concluding that in considering the first Carr factor, “the Board properly assessed
the evidence as it stood at the time of the . . . action . . . in light of what [the
agency officials] knew at the time they acted”); Chambers v. Department of the
Interior, 116 M.S.P.R. 17, ¶ 30 (2011) (applying this principle from Yunus).
¶24In summary, the administrative judge reasonably credited the consistent
testimony of the human resources officials involved in changing the appellant’s
appointment type from permanent to temporary, stating that they believed the
change was a necessary result of the PCSB action recommending the appellant for
a temporary appointment. The appellant has not provided sufficiently sound
reasons to disturb the administrative judge’s findings on this point. See Haebe,
288 F.3d at 1301. Consequently, the agency’s stated reasons for taking the
challenged action were strong, and the first Carr factor favors the agency.
¶25Regarding the second Carr factor, the appellant argues that the
administrative judge erred by concluding that the human resources officials12
involved in changing his appointment type did not have any motive to retaliate
against him. 0056 PFR File, Tab 3 at 11-13. The appellant notes that, by
changing his appointment type, it would be easier for the agency to carry out a
retaliatory termination. Id. We have considered this argument, but we disagree.
If the appellant is correct, he has identified a nonretaliatory reason—the
convenience of human resources officials in expediently carrying out the agency’s
termination decision—for the change in his appointment type. He also argues that
the administrative judge misconstrued his arguments concerning the agency’s
failure to adhere to its Handbook in changing his appointment type as a due
process affirmative defense claim instead of properly considering it as evidence
of retaliatory motive. 0056 PFR File, Tab 3 at 12. In concluding that none of the
human resources officials involved in the appointment type change had a motive
to retaliate against the appellant, the administrative judge noted that the
appellant’s disclosures did not reflect negatively on either official and that there
was no evidence in the record indicating that they changed the appellant’s
appointment type at the behest of any other agency official. 0056 ID at 21.
¶26In addition to any individual motive to retaliate by the agency officials
involved in the challenged personnel action, the analysis of retaliatory motive
must account for any institutional motive to retaliate. Robinson v. Department of
Veterans Affairs , 923 F.3d 1004, 1019-20 (Fed. Cir. 2019) (citing Miller v.
Department of Justice , 842 F.3d 1252, 1261-62 (Fed. Cir. 2016) (citing Whitmore
v. Department of Labor , 680 F.3d 1353, 1370 (Fed. Cir. 2012))); Wilson v.
Department of Veterans Affairs , 2022 MSPB 7, ¶¶ 62-65 (disagreeing with an
administrative judge that the agency’s motive to retaliate was “not great” when,
as relevant here, the appellant’s disclosures put agency officials, including the
individual who decided to remove him, in a critical light). Considering any
potential institutional motive to retaliate does not change the result here. The
appellant’s protected disclosures and activities primarily concerned his
complaints about the actions of the SUNY Chair regarding the hiring of a trauma13
specialist from the affiliate institute and concerns about SUNY residents
endangering patient safety, none of which implicated agency management
officials in the potential wrongdoing. 0042 IAF, Tab 2 at 3, Tab 6 at 1-2, 7,
Tab 112 at 55; HT1 at 79-81, 96, 124 (testimony of the appellant). Regarding the
appellant’s disclosure to the agency’s Secretary alleging that the purchase of a
$2 million robot “ate up” too much of the agency’s equipment budget, there is no
evidence in the record that the officials involved in the robot purchase were even
aware of the decision to change the appellant’s appointment type, much less that
they had any influence or involvement in the decision. 0042 IAF, Tab 5 at 3;
0042 IAF, Tab 6 at 2; HT1 at 96 (testimony of the appellant) (discussing his
disclosure regarding the robot expenditure). Accordingly, we agree with the
administrative judge that there is no evidence of any motive to retaliate against
the appellant based on his protected disclosures or activity in connection with the
change in his appointment status from temporary to permanent.
¶27Finally, the appellant argues that, under the third Carr factor, the lack of
evidence demonstrating that other doctors hired by the agency had the nature of
their appointment statuses determined by a PCSB action should have weighed
against the agency. 0056 PFR File, Tab 3 at 13-15. As previously noted, the
burden rests with the agency to prove by clear and convincing evidence that it
would have taken the challenged action absent the whistleblowing activity, and so
the agency’s failure to produce comparator evidence if it exists “may be at the
agency’s peril,” and “may well cause the agency to fail to prove its case overall.”
Soto v. Department of Veterans Affairs , 2022 MSPB 6, ¶ 18 (quoting Whitmore,
680 F.3d at 1374-75). However, aside from identifying the lack of any evidence
pertaining to the third Carr factor, the appellant has not identified any potential
comparator employees that the agency failed to bring forward or argued that any
such comparator employees exist. See Whitmore, 680 F.3d at 1374 (noting “to the
extent that such evidence exists, . . . the agency is required to come forward with
all reasonably pertinent evidence relating to Carr factor three”). Accordingly, the14
lack of evidence on the third Carr factor effectively removes this factor from
consideration and renders it neutral. See Rickel v. Department of the Navy ,
31 F.4th 1358, 1362, 1364-66 (Fed. Cir. 2022) (affirming the Board’s
determination that the agency proved it would have removed the petitioner absent
his whistleblowing disclosures despite the lack of comparator evidence).
¶28In sum, we modify the initial decision in the 0056 appeal as follows: to
clarify that, consistent with the administrative judge’s findings, the first Carr
factor weighs in the agency’s favor; agree with the administrative judge’s
conclusion that the second Carr factor also weighs in the agency’s favor; and
specify that the absence of any evidence pertaining to the third Carr factor
renders that factor neutral. Based on the foregoing, we agree with the
administrative judge that the agency proved by clear and convincing evidence that
it would have changed the appellant’s appointment type absent his whistleblowing
disclosures or protected activities. 0056 ID at 19-21; see Haebe, 288 F.3d
at 1301. Accordingly, we affirm the initial decisions denying the appellant’s
requests for corrective action in these joined appeals, as modified herein.
NOTICE OF APPEAL RIGHTS4
The initial decisions, as supplemented by this Final Order, constitute the
Board’s final decisions 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
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
this 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. The16
Board neither endorses the 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 file17
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.5 The court of appeals must receive your
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 18
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Katz_Michael_J_NY-1221-16-0042-W-1_and_NY-1221-17-0056-W-1_Final_Order.pdf | 2024-08-09 | MICHAEL J. KATZ v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-, August 9, 2024 | NY- | NP |
735 | https://www.mspb.gov/decisions/nonprecedential/Lewis_LynettePH-1221-19-0060-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LYNETTE LEWIS,
Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION,
Agency.DOCKET NUMBER
PH-1221-19-0060-W-1
DATE: August 9, 2024
THIS ORDER IS NONPRECEDENTIAL1
Lynette Lewis , Baltimore, Maryland, pro se.
Jennifer Karangelen , Esquire, and Julie Tong , 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.
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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The appellant was a GS-13 Program Analyst in the agency’s Office of
Electronic Services and Technology, Division of Strategic Planning and Customer
Engagement. Initial Appeal File (IAF), Tab 1 at 1, Tab 20 at 17. On
November 14, 2018, the appellant filed an IRA appeal, alleging that the agency
took various personnel actions against her in retaliation for protected disclosures.
IAF, Tab 1 at 3, 5. Specifically, she alleged that, in August 2018, she disclosed
to various management officials and the agency’s Office of Inspector General
(OIG) that a manager in her division was attempting to use the appellant’s .edu
email address to obtain free online training for the agency. Id. at 5. The
appellant further alleged that, in retaliation for her disclosures, agency
management engaged in various acts of reprisal. Id. She waived her right to a
hearing. Id. at 2.
¶3The administrative judge issued a jurisdictional order to which the parties
responded. IAF, Tabs 13, 19, 20. After the close of the record, the administrative
judge issued an initial decision dismissing the appeal for lack of jurisdiction.
IAF, Tab 33, Initial Decision (ID). The administrative judge found that the
appellant failed to make a nonfrivolous allegation that she made a protected
disclosure or that any such disclosure was a contributing factor in a personnel
action. ID at 7-9. In the alternative, he found that the agency proved by clear and
convincing evidence that it would have taken the same actions even absent the
appellant’s disclosures. ID at 8-9.
¶4The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. She has also filed supplements to her petition for review. PFR File,
Tabs 3, 6. The appellant also submits a motion to accept an additional pleading.2
PFR File, Tab 7. Some of these pleadings contain additional documents.2 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 9-10.
ANALYSIS
¶5As relevant here, the Board has jurisdiction over an IRA appeal if the
appellant has exhausted her administrative remedies before the Office of Special
Counsel (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 by 5 U.S.C. § 2302(a).
Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
¶6The 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
2 In her petition for review, the appellant states that the agency issued a proposal to
remove her on May 19, 2019. PFR File, Tab 1 at 4. The documents she submits on
review are all relevant to her proposed removal and not to her whistleblower reprisal
claim. PFR File, Tabs 3, 6. There is no evidence that she exhausted her administrative
remedies before OSC concerning her proposed removal. IAF, Tab 1 at 11. 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. Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980). The appellant has not shown that these documents are material to the issues in
this appeal, i.e., the Board’s jurisdiction over the disclosures and personnel action she
raised below. Therefore, we have not considered these documents. As to the
appellant’s motion for leave to file an additional pleading, PFR File, Tab 7, the Board’s
regulations do not provide for pleadings other than a petition for review, a cross petition
for review, a response to the petition for review or cross petition for review, and a reply
to a response. 5 C.F.R. § 1201.114(a). For the Board to consider a party’s pleading,
other than one of those set forth above, the party must describe the nature and need for
the pleading. 5 C.F.R. § 1201.114(a)(5). Here, the appellant states only that she “is
filing a motion to request an additional pleading.” PFR File, Tab 7. We deny the
appellant’s motion for failure to satisfy the foregoing criteria.3
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.
¶7 In his initial decision, the administrative judge did not directly address the
exhaustion requirement because he found that the agency had conceded the issue.3
ID at 6; IAF, Tab 20 at 7. We find that more analysis of the issue was required
because exhaustion is a mixed question of fact and law, and stipulations of mixed
fact and law are not binding on the Board. See MacDonald v. Department of
Justice, 105 M.S.P.R. 83, ¶ 10 (2007). Furthermore, because the appellant has
raised multiple potential whistleblower claims in this appeal, it was incumbent on
the administrative judge to discern between the various claims that had and had
not been exhausted. See Skarada v. Department of Veterans Affairs , 2022 MSPB
17, ¶¶ 7-11, 13. Accordingly, the Board will undertake the analysis on review.
¶8Although the administrative judge fully informed the appellant of the
exhaustion requirement and how to prove it, the record contains very limited
evidence on the issue.4 IAF, Tab 13 at 2, 7-8. The appellant did not file a copy
of her OSC complaint, and she did not file a declaration or affidavit stating that
3 To say that the agency conceded exhaustion is an overstatement because the
concession was for the sake of argument. IAF, Tab 20 at 7. It would be more accurate
to say that the agency did not contest the issue.
4 The initial decision was issued prior to the Board’s decision in Chambers, 2022 MSPB
8. To the extent that the administrative judge stated that the appellant was required to
inform OSC of the “precise” ground of her claim, his articulation of the exhaustion
standard was arguably more stringent than the requirement as stated in Chambers.
Nevertheless, we find that the appellant’s substantive rights have not been prejudiced.4
she raised with OSC the substance or facts of her Board appeal. The only
evidence of what the appellant raised to OSC is the information contained in the
OSC letters that she filed with her initial appeal form. IAF, Tab 1 at 15-17. As
far as disclosures are concerned, the letters reflect that the appellant notified OSC
of her disclosure to agency management that a supervisor attempted to misuse the
appellant’s .edu email address. Id. at 16. OSC’s letter does not mention the
appellant’s disclosure to the OIG. However, because the OIG disclosure
concerned the same matter and occurred around the same time, we find the
evidence sufficient to show that the appellant exhausted this disclosure as well.
Finally, the record shows that the appellant alleged to OSC that the agency
retaliated against her for “refusing to commit fraud,” which we infer pertains to
her refusal to use her .edu email address to obtain free educational materials for
the agency. Id. at 15.
¶9Among the alleged retaliatory actions identified in OSC’s letter, the only
one that would qualify as a standalone personnel action is the denial of a
reassignment. Id. at 15-16; see 5 U.S.C. § 2302(a)(2)(A)(iv). The other actions
identified in OSC’s letters are not separately enumerated under the statutory
definition of “personnel action.” IAF, Tab 1 at 15-16; see 5 U.S.C. § 2302(a)(2)
(A). However, considered together, they could potentially support a finding that
the agency subjected the appellant to a significant change in duties,
responsibilities, or working conditions.5 See generally 5 U.S.C. § 2302(a)(2)(A)
(xii); Skarada, 2022 MSPB 17, ¶¶ 13-16. Because the appellant notified OSC that
she was alleging a retaliatory “hostile work environment”, IAF, Tab 1 at 15-16,
we find that she has exhausted her claim that the agency retaliated against her
5 In her Board appeal, the appellant alleged that the agency retaliated against her by
giving her a lowered performance rating. IAF, Tab 19 at 5-6. This would constitute a
standalone personnel action under 5 U.S.C. § 2302(a)(2)(A)(viii). However, there is no
evidence that the appellant raised the issue before OSC, and so the Board lacks
jurisdiction over this claim. See Cooper v. Department of Veterans Affairs , 2023 MSPB
24, ¶ 7. In this regard, we observe that OSC closed its investigation on October 23,
2018, but the appellant did not receive the performance rating at issue until October 30,
2018. IAF, Tab 1 at 15, Tab 19 at 5. 5
through a significant change in duties, responsibilities, or working conditions, see
Skarada, 2022 MSPB 17, ¶ 16 (explaining that allegations of a “hostile work
environment” may be cognizable under the Whistleblower Protection Act as a
significant change in duties, responsibilities, or working conditions).
¶10Regarding the appellant’s claimed disclosures and activities, in early
August 2018, agency management was preparing for an upcoming employee
training session when it realized that a website that had been used during previous
trainings was no longer free of charge. IAF, Tab 19 at 14. One manager figured
out that the website was still free of charge to individuals enrolled in school. He
therefore sought out employees who he believed might have a .edu email address,
with the intention of using such an email address to access the website. Id. When
this manager approached the appellant, she declined to provide him her school
email address, and she reported the incident to management and the OIG. IAF,
Tab 21 at 10-11.
¶11In his initial decision, the administrative judge found that the appellant did
not make a nonfrivolous allegation that her disclosure was protected because a
reasonable person would not find a request for the appellant’s school email
address to be an abuse of authority. ID at 7-8. We disagree with the
administrative judge’s analysis. First, we find that the appellant made a
nonfrivolous allegation that her disclosure to management was protected under
5 U.S.C. § 2302(b)(8)(A)(i) because she reasonably believed it evidenced a
violation of law, rule, or regulation. See Tatsch v. Department of the Army ,
100 M.S.P.R. 460, ¶ 12 (2005) (stating that the Board does not require an
appellant to correctly label the category of wrongdoing implicated by the
circumstances of her disclosure). We find that a disinterested observer could
reasonably conclude that it would be unlawful for the Government to obtain free
services by masquerading as a student or an educational institution. Second, we
find that the appellant has made a nonfrivolous allegation that her disclosure to
the OIG was protected under 5 U.S.C. § 2302(b)(9)(C). See Fisher v. Department6
of the Interior, 2023 MSPB 11, ¶ 8. Third, we find that the appellant has made a
nonfrivolous allegation that her refusal to provide her school email address in
furtherance of management’s scheme to obtain free services under false pretense
was protected activity under 5 U.S.C. § 2302(b)(9)(D).6
¶12Regarding personnel actions, we find that the appellant made a nonfrivolous
allegation that the agency failed to take a personnel action under 5 U.S.C.
§ 2302(a)(2)(A)(iv) when it denied her request for reassignment. The appellant
has also made a nonfrivolous allegation that her disclosures and activities were a
contributing factor therein because management knew about these disclosures and
activities,7 and a period of no more than 3 months elapsed before management
denied the appellant’s resignment request. IAF, Tab 19 at 15-16; see Swanson v.
General Services Administration , 110 M.S.P.R. 278, ¶ 12 (2008).
¶13However, we find that the appellant’s hostile work environment claim does
not amount to a nonfrivolous allegation of a significant change in duties,
responsibilities, or working conditions under 5 U.S.C. § 2302(a)(2)(A)(xii). The
Board has held that this statutory provision should be interpreted broadly, to
include any harassment or discrimination that could have a chilling effect on
whistleblowing or otherwise undermine the merit system, as determined on a
case-by-case basis. Skarada, 2022 MSPB 17, ¶ 14. Nevertheless, to qualify as a
personnel action under this clause, the agency actions at issue must, individually
or collectively, have practical consequences for the appellant and have a
6 We make no finding at this time about whether the appellant was refusing to obey an
“order” within the meaning of the statute, or which, if any, law, rule, or regulation such
order would have required her to violate. These are merits determinations. We note
only that the plain language of the statute would appear to require that the appellant
show that an order would actually have required her to violate a law, rule, or regulation
—not just that she had a reasonable belief that it would have. 5 U.S.C. § 2302(b)(9)
(D).
7 We acknowledge that not every management official involved may have been aware of
each of the appellant’s disclosures and activities. Nevertheless, the record on this point
is sufficient for jurisdictional purposes. See Cahill v. Merit Systems Protection Board ,
821 F.3d 1370, 1374-75 (Fed. Cir. 2016).7
significant effect on the overall nature or quality of her working conditions,
responsibilities, or duties. Id., ¶¶ 15-16. In this case, the appellant alleges that
the agency denied her a police escort, listed a fictitious manager on her personnel
records, refused to approve her leave in a timely fashion, removed her equal
employment opportunity paperwork from the office printer, scheduled meetings to
discuss her workload, and required her to meet individually with the Deputy
Division Director.8 IAF, Tab 1 at 15. For the most part, the appellant has not
explained the details and circumstances of these alleged agency actions such that
the Board could conclude that they substantially affected her working conditions.
Regarding her August 8, 2018 meeting with the Deputy Division Director, the
appellant states that the meeting constituted sexual harassment. IAF, Tab 1 at 5,
Tab 19 at 5, Tab 22 at 4. Although sexual harassment certainly could amount to a
significant change in working conditions, we find that the appellant in this case
did not make a nonfrivolous allegation that sexual harassment actually occurred.
She does not allege that the Deputy Division Director ever did or said anything
sexually inappropriate to her or anyone else; rather, she argues that requiring her
to attend a one-on-one meeting with him was sexual harassment per se. IAF,
Tab 1 at 5, Tab 19 at 5, Tab 22 at 4. We disagree. Individual meetings with
supervisors and managers are a normal and necessary part of Federal employment,
and absent any sexually inappropriate comments or conduct, a reasonable person
would not find such meetings to be sexually harassing. See Sheryl S. v.
Department of Agriculture , EEOC Appeal No. Appeal No. 2021000167, 2022 WL
357444 at * 3 (Jan. 26, 2022) (“Claims of sexual harassment are evaluated from
the objective viewpoint of a reasonable person in the victim’s circumstances.”).
Considering the totality of the appellant’s allegations in the light most favorable
to her, we find that she did not make a nonfrivolous allegation that the agency
8 The appellant alleged some other minor actions in her Board appeal, but because she
has not shown that she raised them with OSC, we will not consider them. IAF, Tab 1
at 5, Tab 19 at 5-6; see Skarada, 2022 MSPB 17, ¶ 10.8
subjected her to a significant change in duties, responsibilities, or working
conditions.
¶14As noted above, the administrative judge found that even if the appellant
had established jurisdiction over her appeal, the agency proved by clear and
convincing evidence that it would have taken the same actions absent the
appellant’s whistleblowing. ID at 8-9. However, under the statute, the Board
may not proceed to the agency’s affirmative defense unless it has first determined
that the appellant established her case in chief by preponderant evidence.
Scoggins v. Department of the Army , 123 M.S.P.R. 592, ¶ 28 (2016); see 5 U.S.C.
§ 1221(e)(2). The Board has not yet made a finding on the merits of the
appellant’s case in chief.
¶15Further, the Board having now found jurisdiction over this appeal, the
parties are entitled to a reasonable opportunity to file additional evidence and
argument on the merits. Read together, the jurisdictional and close of the record
orders appear to say that the appellant would have an opportunity to address the
merits of her appeal if the administrative judge found that she established
jurisdiction over it.9 IAF, Tab 13 at 7-8, Tab 29. Therefore, the administrative
judge will allow the parties a full and fair opportunity on remand to supplement
the record on the merits.
ORDER
¶16For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. Adjudication on
9 The facts in Skarada are similar to the extent that the appellant in that case waived his
right to a hearing, the administrative judge dismissed the appeal for lack of jurisdiction,
and the Board found jurisdiction on review. However, the Board in Skarada proceeded
to adjudicate the merits of the appeal on review because the parties had a full and fair
opportunity to develop the record on the merits below. Specifically, the administrative
judge in Skarada notified the appellant that he was required to submit evidence
pertaining to both jurisdiction and the merits. 2022 MSPB 17, ¶ 21. For the reasons
explained above, we find that the parties in this case have not yet had a full and fair
opportunity to address the merits of the appeal. 9
remand will be limited to the alleged disclosures and personnel action identified
in paragraphs 11 and 12 above and will include an opportunity for the parties to
submit evidence and argument on the merits of the appeal. The administrative
judge will then issue a new initial decision, in which he will determine whether
the appellant has proven her case in chief, and if so, whether the agency has
proven its affirmative defense.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Lewis_LynettePH-1221-19-0060-W-1_Remand_Order.pdf | 2024-08-09 | LYNETTE LEWIS v. SOCIAL SECURITY ADMINISTRATION, MSPB Docket No. PH-1221-19-0060-W-1, August 9, 2024 | PH-1221-19-0060-W-1 | NP |
736 | https://www.mspb.gov/decisions/nonprecedential/Pearson_Lisa_A_CH-0752-22-0311-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LISA ANN PEARSON,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-22-0311-I-1
DATE: August 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael T. Smith , Esquire, Schaumburg, Illinois, for the appellant.
Maryl R. Rosen , 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
sustained the appellant’s removal. Generally, we grant petitions such as this one
only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial 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).
¶2On review, the appellant argues that the administrative judge erred in
crediting the testimony of the agency witnesses over her testimony in sustaining
her removal. Petition for Review (PFR) File, Tab 1 at 4-10. We find that the
administrative judge’s findings are well reasoned, supported by the record, and in
accordance with the law. Initial Appeal File, Tab 64, Initial Decision.
Accordingly, we discern no basis to disturb them. See Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (finding that the Board may
overturn an administrative judge’s demeanor-based credibility findings only when
it has “sufficiently sound” reasons for doing so); Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997) (declining to disturb the administrative judge’s
findings where she considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health
and Human Services , 33 M.S.P.R. 357, 359 (1987) (same). The appellant also
submits new evidence for consideration on review. PFR File, Tab 1 at 12-20. We
decline to consider this new evidence. See Avansino v. U.S. Postal Service ,
3 M.S.P.R. 211, 214 (1980) (stating that 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).
Additionally, the appellant has not established that any of the information is2
material. 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 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 | Pearson_Lisa_A_CH-0752-22-0311-I-1_Final_Order.pdf | 2024-08-09 | LISA ANN PEARSON v. UNITED STATES POSTAL SERVICE, MSPB Docket No. CH-0752-22-0311-I-1, August 9, 2024 | CH-0752-22-0311-I-1 | NP |
737 | https://www.mspb.gov/decisions/nonprecedential/Arias_Domingo_J_SF-0752-20-0609-I-1_Final_Order0.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOMINGO J. ARIAS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-20-0609-I-1
DATE: August 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Domingo J. Arias , Stockton, California, pro se.
Catherine V. Meek , 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 appeal challenging his termination for lack of jurisdiction. On
petition for review, the appellant makes the following arguments: the
administrative judge erred by failing to adjudicate his claim of discrimination; the
agency engaged in a prohibited personnel practice; he was not required to serve 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).
probationary period; and his prior Board appeal was incorrectly decided.2 The
appellant also argues that he should be entitled to severance pay and other
monetary damages, and alleges that agency officials are intercepting or disrupting
his mail. Finally, the appellant provides a number of documents with his petition
for review. 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.
The administrative judge correctly found that the Board lacks jurisdiction
over the appellant’s appeal challenging his termination because the appellant
failed to nonfrivolously allege or otherwise establish that he fits within the
limited categories of U.S. Postal Service employees with adverse action appeal
rights with the Board. Initial Appeal File, Tab 7, Initial Decision (ID) at 4; see
39 U.S.C. § 1005(a)(4)(A) (providing for Board jurisdiction over an adverse
action appeal by U.S. Postal Service employees only when such an employee is
either a preference eligible or in the position of a supervisor or a management
employee or an employee engaged in personnel work in other than a purely
nonconfidential clerical capacity); see also Paige v. U.S. Postal Service ,
2 On April 26, 2024, the Board issued a Final Order in Arias v. U.S. Postal Service ,
MSPB Docket No. SF-0752-19-0383-I-1, dismissing the appellant’s petition for review,
which involved his allegation that his September 2017 resignation was involuntary, as
untimely filed without good cause shown. 2
106 M.S.P.R. 299, ¶ 11 (2007). Similarly, we also agree with the administrative
judge’s conclusion that the Board also lacks jurisdiction over the appellant’s
claims that the agency discriminated against him and engaged in a prohibited
personnel practice because there is no action before the Board over which it has
jurisdiction. ID at 4; see Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980)
(concluding that, absent an otherwise appealable action, the Board lacks
jurisdiction over discrimination and prohibited personnel practice claims), aff’d,
681 F.2d 867, 871-73 (D.C. Cir. 1982). Therefore, we DENY the petition for
review and AFFIRM the initial decision, which is now the Board’s final
decision.3 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
3 Regarding the information the appellant provides for the first time with his petition for
review, which includes documents pertaining to a formal equal employment opportunity
complaint and the appellant’s prior Board appeal challenging his September 2017
resignation, a Privacy Act authorization and waiver dated July 28, 2017, a July 30, 2020
Office of Workers’ Compensation Programs waiver request and an August 3, 2020
signed release, and a June 24, 2020 document related to California state welfare
benefits, we have not considered any of the documents because they are not both new
and material. Petition for Review File, Tab 2 at 7-16; 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). The records related to the
appellant’s 2017 resignation are all dated prior to the close of record in this case, so
they are not “new,” and none of the other documents have any bearing on the
dispositive jurisdictional matter at issue in this appeal, so they are not material.
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
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this 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.5 The court of appeals must receive your petition for
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
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 | Arias_Domingo_J_SF-0752-20-0609-I-1_Final_Order0.pdf | 2024-08-09 | DOMINGO J. ARIAS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-20-0609-I-1, August 9, 2024 | SF-0752-20-0609-I-1 | NP |
738 | https://www.mspb.gov/decisions/nonprecedential/Church_Raymond_M_DE-0752-22-0201-C-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAYMOND M. CHURCH,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-22-0201-C-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Glenn L. Smith , Esquire, Grand Rapids, Michigan, for the appellant.
Albert Lum , Brooklyn, New York, for the appellant.
Michael Tita , 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
denied his petition for enforcement of a settlement agreement. On petition for
review, among other arguments, the appellant repeats his claims that the agency
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
breached their settlement agreement and that he entered into the agreement with
the understanding that he was entitled to keep wage payments he received for the
period from May 11 to September 2, 2022. 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. 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 | Church_Raymond_M_DE-0752-22-0201-C-1_Final_Order.pdf | 2024-08-08 | RAYMOND M. CHURCH v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-22-0201-C-1, August 8, 2024 | DE-0752-22-0201-C-1 | NP |
739 | https://www.mspb.gov/decisions/nonprecedential/Dunlap_LucillePH-0841-19-0230-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUCILLE DUNLAP,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
TERRY K. SULLIVAN,
Intervenor.DOCKET NUMBER
PH-0841-19-0230-I-1
DATE: August 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
Florence Foster , Baltimore, Maryland, for the appellant.
Alison Pastor , Washington, D.C., for the agency.
Terry K. Sullivan , Esquire, Baltimore, Maryland, pro se.
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
The intervenor has filed a petition for review of the initial decision, which
remanded the appellant’s appeal of the final decision of the Office of Personnel
Management (OPM) appointing the intervenor as the appellant’s representative
payee back to OPM for further consideration. 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. For the reasons discussed below, we DENY the petition for review,
AFFIRM the initial decision, and REMAND the case to OPM for further
consideration.
BACKGROUND
The appellant retired from the Department of Veterans Affairs, effective
January 2, 2010. Initial Appeal File (IAF), Tab 6 at 30, 33. On July 20, 2017,
OPM approved the application of A.W. to become the appellant’s
“guardian/conservator,” also known as a representative payee, which is the
individual responsible for using or conserving retirement benefits in the best
interest of the annuitant. Id. at 19-22. Nearly 2 years later, the intervenor in the
instant Board appeal, Terry Sullivan, Esquire, submitted an application to OPM to
become the appellant’s new representative payee, effectively replacing A.W.,2
based on a decision by the Circuit Court for Prince George’s County to appoint
her as guardian of the appellant’s property. Id. at 13-18. On April 1, 2019, OPM
approved the intervenor’s application to become the appellant’s representative
payee and issued a final decision informing the appellant of the appointment. Id.
at 8-12.
The appellant appealed OPM’s final decision to the Board. IAF, Tab 1.
She did not contest OPM’s decision to appoint a representative payee; however,
she stated that she wished to have her daughter as the payee and that she “had
never met th[e] person” appointed by OPM. Id. at 5. She also claimed that she
was “constantly” a victim of fraud. Id. In an order, the administrative judge
provided the appellant with the opportunity to submit documents demonstrating
that her retirement matters had been mismanaged and informed her that any such
evidence must be filed no later than September 6, 2019. IAF, Tab 13 at 2.
Additionally, because OPM’s final decision and the appellant’s appeal
implicated Ms. Sullivan’s rights, the administrative judge issued an intervenor
notice informing her of her right to participate in the proceedings. IAF, Tab 8.
Thereafter, as an intervenor, she filed a motion to dismiss, arguing that the
appellant’s allegation of fraud concerned only the first representative payee and
that the appellant presented no evidence that she, as the current representative
payee, had committed any fraud against the appellant. IAF, Tab 14. Following
the appellant’s response to the motion to dismiss, IAF, Tab 15, the administrative
judge scheduled a telephonic status conference for October 16, 2019, at which the
intervenor failed to appear, IAF, Tab 16, Tab 17, Status Conference Recording
(SCR).
During the status conference, the appellant’s representative before the
Board, who is also her daughter and the person she wishes to make her
representative payee, IAF, Tab 12, Tab 15 at 4, informed the administrative judge
that she had attempted to submit documentation supporting the appellant’s claim
that her retirement matters had been mismanaged, pursuant to the prior order3
issued by the administrative judge, but that she was having difficulty with
e-Appeal, so she emailed the documents to a paralegal, SCR. The administrative
judge informed the appellant’s representative that emailing documents was not an
appropriate way to have documents entered into the record, but that, due to her
difficulties, he would add the documents to the administrative record so that the
record reflected the submission. Id. OPM’s representative, who was also present
for the status conference, did not object. Id.
Additionally, during the status conference, the appellant’s representative
again indicated that the appellant was not challenging OPM’s determination that
she lacks the ability to manage her own financial affairs and expressed the
appellant’s desire to have her designated as the representative payee. Id. OPM’s
representative indicated that OPM had not considered the appellant’s daughter
when it appointed the intervenor and that, if the appellant’s daughter submitted a
representative payee application, it would do so. Id. In light of this discussion,
the administrative judge informed the parties that he would issue an initial
decision remanding the case to OPM to consider appointing the appellant’s
daughter as her representative payee. Id. He did not rule on the intervenor’s
motion to dismiss.
Two days later, the administrative judge issued an initial decision
remanding the matter back to OPM for further consideration. IAF, Tab 19, Initial
Decision (ID). The intervenor has filed a petition for review, which is largely
duplicative of her motion to dismiss. Petition for Review (PFR) File, Tab 2. In
addition to reasserting that the appellant failed to produce any evidence
demonstrating that she mismanaged the appellant’s retirement affairs, she argued
that she was not aware of the status conference and did not intend to waive her
appearance. Id. at 6-7. She also claims that she never received the appellant’s
response to her motion to dismiss and that she received the appellant’s
supplemental documents after the deadline set by the administrative judge. Id.
at 5-6. She further argues that the administrative judge should have dismissed the4
appeal due to the appellant’s failure to timely comply with his order to produce
documentation, evidencing mismanagement of her retirement matters, and to
timely serve her response to the motion to dismiss. Id. at 5-6.
OPM has responded to the intervenor’s petition, to which the intervenor has
replied. PFR File, Tabs 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
It is well settled that the Board may only consider retirement issues that
have been the subject of an OPM final decision. See Kilpatrick v. Office of
Personnel Management , 94 M.S.P.R. 609, ¶ 8 (2003). Here, neither the appellant,
nor OPM, nor the intervenor appears to dispute that OPM did not consider
whether the appellant’s daughter should be the representative payee.
Additionally, it seems that OPM is currently considering the appellant’s
daughter’s application to be designated as the appellant’s representative payee.
PFR File, Tab 5 at 5. Accordingly, we discern no error in the administrative
judge’s decision to remand the appeal to OPM for further consideration.2
We have considered the intervenor’s arguments on review but do not
believe that any provide a basis to disturb the initial decision. See 5 C.F.R.
§ 1201.115. Although we agree with the intervenor that the supplemental
documents submitted by the appellant below do not appear to demonstrate that the
intervenor mismanaged the appellant’s retirement matters because they concern
only the actions of the original representative payee, IAF, Tab 18; PFR File,
Tab 2 at 6, we do not believe that such a showing is wholly necessary to the
determination of who should be designated as the appellant’s representative
payee.3 Regardless of whether the intervenor properly or improperly managed the
2 OPM does not appear to have published or submitted to the Board any guidance on its
procedures for appointing a representative payee. Thus, we are unable to determine
what the appropriate procedures are beyond the submission of an application by a
willing party to become a representative payee. IAF, Tab 6 at 14-15.
3 The intervenor also argues on review that the supplemental documents that the
appellant submitted below were improperly filed and that she did not have an5
appellant’s retirement matters, OPM may nonetheless still conclude, after further
development of the issue upon remand, that the appellant’s daughter is a suitable
and preferable representative payee independent of any analysis of the
intervenor’s conduct.
The intervenor also argues on review that she did not receive notice of the
status conference and, therefore, did not have a sufficient opportunity to address
the appellant’s, OPM’s, and the administrative judge’s discussion regarding
remanding the appeal for additional consideration. PFR File, Tab 2 at 6-7. She
claims that the email notification from the e-Appeal system was inadvertently
sent to her spam folder and was only later located after utilizing the assistance of
information technology personnel. Id. at 6. The intervenor’s argument does not
provide a basis to disturb the initial decision. The Board’s regulations provided
that e-filers were responsible for ensuring that email from @mspb.gov was not
blocked by filters and for monitoring case activity at e -Appeal to ensure that they
had received all case-related documents. 5 C.F.R. § 1201.14(j)(2)-(3) (2019).
Here, the intervenor was registered as an e-filer at the time, IAF, Tab 9, and was
therefore responsible for monitoring case activity, see Mills v. U.S. Postal
Service, 119 M.S.P.R. 482, ¶ 6 (2013); 5 C.F.R. § 1201.14(j)(3) (2019). Thus,
the intervenor’s failure to attend the status conference was attributable to her own
lack of due diligence. See Mills, 119 M.S.P.R. 482, ¶ 6.
The intervenor also argues on review that the administrative judge should
have dismissed the appeal due to the appellant’s failure to: (1) timely comply
with his August 21, 2019 order providing her with the opportunity to submit
documentation supporting her assertion that her retirement matters were
opportunity to respond to them before the administrative judge issued the initial
decision. PFR File, Tab 2 at 6. Although the initial decision was issued 2 days after
the appellant’s documents were added to the administrative record and made available
in e-Appeal, we do not believe that the intervenor suffered any harm, as the
administrative judge did not conclude that they demonstrated that she failed to fulfill
her duties as a representative payee. ID at 2-4. In fact, the administrative judge did not
rely on any of the supplemental documents in the initial decision. Id. 6
mismanaged; and (2) timely serve the intervenor with her response to the
intervenor’s motion to dismiss. PFR File, Tab 2 at 5-6.
It is well established that an administrative judge has broad discretion in
controlling the proceedings before him, which includes the authority to impose
sanctions for failure to respond to his orders or to make a timely filing. See
Simon v. Department of Commerce , 111 M.S.P.R. 381, ¶ 11 (2009); 5 C.F.R.
§§ 1201.41(b)(11), 1201.43(a), (c). Generally, the sanction of the dismissal of an
appeal is reserved for cases in which an appellant fails to prosecute her appeal.
See 5 C.F.R. § 1201.43(b). The Board’s regulations typically do not provide for
dismissal of an appeal as a sanction in cases when an appellant fails to comply
with an administrative judge’s order or fails to make a timely filing. See 5 C.F.R.
§ 1201.43(a), (c) (providing the appropriate sanctions for the failure to comply
with an order or to make a timely filing).
In any event, as discussed above, the lack of evidence regarding the alleged
mismanagement of the appellant’s retirement affairs by the intervenor does not
preclude OPM from considering another representative payee. See supra ¶ 10.
Regarding the intervenor’s assertion that the appellant failed to serve her with the
response to the motion to dismiss, PFR File, Tab 2 at 5, the record shows that the
appellant’s response was electronically filed via e-Appeal on September 28, 2019,
IAF, Tab 15. Although the intervenor claims that information technology
personnel searched her email and were unable to locate a notification from the e-
Appeal system informing her of the appellant’s response, it appears that she has
since reviewed the response because she has addressed its contents in her petition
for review. PFR File, Tab 2 at 5. Therein, she asserts that the appellant’s
response contains only more allegations against the prior representative payee,
and she states that she is entitled to a ruling on the motion. Id. at 5, 7. We have
considered the motion, and for the reasons already discussed here, we deny it.
Based on the foregoing, we discern no error in the administrative judge’s decision7
not to dismiss the appeal on the grounds asserted by the intervenor and to remand
the appeal to OPM.
Accordingly, we deny the intervenor’s petition for review, and we affirm
the initial decision.4
ORDER
For the reasons discussed above, we remand this case to OPM for further
consideration.
On remand, OPM shall consider the appellant’s preferred representative
payee’s application and shall allow the appellant and/or her preferred
representative payee the opportunity to submit evidence and argument in support
of that application. OPM shall also allow the intervenor the opportunity to
respond to any evidence and argument submitted by the appellant and/or her
preferred representative payee concerning the question of who should act as the
appellant’s representative payee.
OPM shall issue a new final decision addressing the question of who
should act as the appellant’s representative payee. In that decision, OPM shall
advise the appellant of the right to file an appeal with the Board if she disagrees
with that new decision. See 5 U.S.C. §§ 8347(d)(1), 8461(e)(1); 5 C.F.R. §§
831.110, 841.308. Any such appeal must be filed consistent with the Board’s
regulations. We ORDER the appellant to provide all necessary information that
OPM requests to help it carry out the Board’s Order. See 5 C.F.R. § 1201.181(b).
If OPM fails to issue the ordered decision within 60 days of the date of this
order, the appellant may file a petition for enforcement with the regional or field
office that issued the initial decision in this appeal. 5 C.F.R. § 1201.181(a). The
petition should contain specific reasons why the appellant believes that OPM has
4 In her petition for review, the intervenor also requests a hearing. PFR File, Tab 2 at 7.
The Board’s regulations provide that, although intervenors generally have the same
rights and duties as parties, they do not have an independent right to a hearing. See
5 C.F.R. § 1201.34(d)(1). Therefore, we deny the intervenor’s request for a hearing.8
not fully carried out the Board’s Order and should include the dates and results of
any communications with OPM about its progress in issuing its final decision.
5 C.F.R. § 1201.182(a). Any petition for enforcement must be filed within
90 days of the date of this order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Dunlap_LucillePH-0841-19-0230-I-1_Remand_Order.pdf | 2024-08-08 | LUCILLE DUNLAP v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. PH-0841-19-0230-I-1, August 8, 2024 | PH-0841-19-0230-I-1 | NP |
740 | https://www.mspb.gov/decisions/nonprecedential/Harnois_NancyDC-0845-19-0583-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NANCY HARNOIS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
DEPARTMENT OF HOMELAND
SECURITY,1
Intervenor.DOCKET NUMBER
DC-0845-19-0583-I-2
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Nancy Harnois , Fayetteville, North Carolina, pro se.
Jane Bancroft and Alison Pastor , Washington, D.C., for the agency.
Aaron Baughman , Esquire, Arlington, Virginia, for the intervenor.
1 The administrative judge determined that the Board needed records relating to a
special pay rate for the appellant’s former position, and therefore ordered the
Department of Homeland Security’s Transportation Security Administration to
participate as an intervenor in this case. Initial Appeal File (IAF), Tab 8.
2A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the final decision of the Office of Personnel Management (OPM) to
collect an overpayment to the appellant of $13,438.97 in disability retirement
annuity payments. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
find that the appellant provided substantial evidence that she was without fault in
creating the overpayment, we AFFIRM the initial decision.
BACKGROUND
The appellant was an SV-07 Supervisory Transportation Security Officer
for the Department of Homeland Security’s Transportation Security2
Administration (TSA), in the Boston-Worcester-Manchester locality area, with
adjusted basic pay of $46,394. Initial Appeal File (IAF), Tab 7 at 63, 106.
The appellant was granted a Federal Employees’ Retirement Systems (FERS)
disability retirement annuity, effective August 9, 2007. Id. at 85-106.
In December 2015, the appellant was reemployed with the Federal
Government, and in January 2016, she notified OPM of her reemployment.
Id. at 76-77. OPM interpreted this notification as a request by the appellant that
it cease her disability annuity payments. Id. at 73. On or about April 12, 2016,
OPM reviewed the appellant’s Social Security records and determined that her
disability retirement annuity should have been stopped in June 2015, because her
reported income for 2014 exceeded the 80% earnings limitation for disability
retirement annuitants. Id. at 50, 58, 60. Specifically, OPM found that, as of
December 31, 2014, the current rate of basic pay for the SV-07 Supervisory
Transportation Security Officer position from which the appellant retired was
$52,824, and the appellant’s 2014 earned income of $49,940 exceeded 80% of
that amount. Id. at 50, 60. OPM further found that between June 2015, when the
appellant’s annuity should have stopped, and April 2016, when it actually
stopped, the appellant accrued a net overpayment of $15,004.97. Id. at 50-51, 56,
58. The appellant requested reconsideration, and OPM issued a final decision
affirming the existence and the amount of the overpayment. Id. at 46-49.
The appellant filed a Board appeal, but during the pendency of the appeal,
OPM rescinded its decision. Id. at 44-45. The administrative judge dismissed
that appeal for lack of jurisdiction. Id. OPM subsequently issued a new decision,
still reflecting an overpayment for the same reasons, but recalculating the amount
of the net overpayment to $13,438.97. Id. at 16-23. The appellant requested
reconsideration, and on May 1, 2019, OPM issued a final decision affirming its
initial decision and giving the appellant the choice between making make a lump
sum repayment and making the repayment, with interest, over 37 monthly
installments. Id. at 9-13.3
The appellant filed the instant Board appeal contesting the existence of the
overpayment and alternatively requesting a waiver. IAF, Tab 1. She challenged
OPM’s determination of an SV-07 Supervisory Transportation Security Officer’s
2014 salary, which formed the basis for the June 2015 annuity termination, and
she argued that OPM’s delay in reaching that determination caused the
overpayment. Id. at 4-5.
After a telephonic hearing, the administrative judge issued an initial
decision affirming OPM’s final decision. Refiled Appeal File (RAF), Tab 21,
Initial Decision (ID). Relying on information provided by the TSA during the
pendency of the appeal, the administrative judge found that the appellant’s 2014
earned income exceeded 80% of the SV-07 Supervisory Transportation Security
Officer rate of basic pay for that year. ID at 4-6. She further found that the
appellant failed to provide any evidence to support a finding that the overpayment
should be waived or that the collection schedule should be adjusted. ID at 6-7.
The appellant has filed a petition for review, again challenging the
calculation for the 2014 SV-07 Supervisory Transportation Security Officer rate
of basic pay and arguing that recovery of any overpayment should be waived.
Petition for Review (PFR File), Tab 1. OPM has filed a nonsubstantive response.
PFR File, Tab 4.
ANALYSIS
The appellant was restored to earning capacity as of December 31, 2014.
If a FERS disability retirement annuitant, before becoming 60 years of age,
is restored to an earning capacity fairly comparable to the current rate of pay of
the position occupied at the time of retirement, payment of the annuity terminates
180 days after the end of the calendar year in which earning capacity is so
restored. 5 U.S.C. 8455(a)(2). Earning capacity is deemed restored if in any
calendar year the income of the annuitant from wages or self-employment or both
equals at least 80% of the current rate of pay of the position occupied4
immediately before retirement. Id.; 5 C.F.R. § 844.402(a). Generally, the income
limitation is determined based on the rate for the grade, step, and any additional
basic pay that was in effect on the date of separation. 5 C.F.R. § 844.402(b)(1).
However, if the annuitant retired from a position in which the rate of basic pay is
not equal to a grade and step in a pay schedule, “the grade and step will be
established for this purpose at the lowest step in the pay schedule grade that is
equal to or greater than the actual rate of basic pay payable.” 5 C.F.R.
§ 844.402(b)(2)(i).
In this case, it is undisputed that, during all relevant time periods, SV-07
Supervisory Transportation Security Officer was a pay band position, and the
appellant’s rate of basic pay under that system was not equal to a grade and step
in a pay schedule. In reaching its final decision, OPM used GS-07, Step 8 as a
benchmark to determine that the appellant’s rate of basic pay would have been
$52,824 in 2014. IAF, Tab 7 at 63. During the pendency of the appeal, OPM
obtained information from TSA concerning rates of basic pay specific to the
appellant’s former SV-07 position. RAF, Tab 15 at 6, 8, 10. According to TSA’s
data, the 2014 rate of basic pay for the appellant’s SV-07 position was $51,348.
Id. at 6. Because TSA’s data shows a rate of basic pay lower than that used by
OPM in its calculations, OPM’s conclusion that the appellant’s 2014 earned
income of $49,940 exceeded the 80% limitation remains correct.
On petition for review, the appellant argues that she calculated the SV-07
current salary “by taking the percentage over the base salary at the time of
retirement and calculating that percentage over the base salary publicly listed by
TSA annually,” and that her income never exceeded 80% by that calculation.
PFR File, Tab 1 at 4-5. However, the appellant has not provided the Board with
either her actual calculations or sufficient data for us to replicate those
calculations. Moreover, the appellant’s proffered method of calculating the
current rate of basic pay for her former position is not authorized under 5 C.F.R.
§ 844.402(b). We find that the appellant has not provided a sufficient basis to5
disturb the administrative judge’s finding that her 2014 earned income exceeded
the 80% limitation and that she was therefore restored to earning capacity at that
time. ID at 4-6.
OPM proved the existence and the amount of the overpayment.
OPM bears the burden of proving the existence and amount of an annuity
overpayment by preponderant evidence. Vojas v. Office of Personnel
Management, 115 M.S.P.R. 502, ¶ 10 (2011); 5 C.F.R. § 1201.56(b)(2)(ii).
Because the appellant was restored to earning capacity as of December 31, 2014,
her disability retirement annuity should have ceased effective June 30, 2015.
See 5 U.S.C. § 8455(a)(2); 5 C.F.R. § 844.402(a). Because OPM continued to
pay the annuity until March 30, 2016 (nine extra monthly annuity payments), the
appellant received an overpayment. IAF, Tab 7 at 23; see Ruskin v. Office of
Personnel Management , 73 M.S.P.R. 544, 547, 551 (1997). The appellant does
not dispute OPM’s calculation that the net overpayment amounted to $13,384.97.
IAF, Tab 7 at 16, 23. This calculation appears correct on its face, and we find no
basis to disturb the administrative judge’s finding that OPM proved the existence
and the amount of the overpayment. ID at 3, 6.
The appellant has not provided a sufficient basis to waive collection of
the overpayment.
Recovery of an overpayment may not be made from an individual when, in
the judgment of OPM, the individual is without fault and recovery would be
against equity and good conscience.3 5 U.S.C. § 8470(b); 5 C.F.R. § 845.301.
The appellant bears the burden of establishing her entitlement to a waiver by
substantial evidence. 5 C.F.R. §§ 845.307(b), 1201.56(b)(2)(ii).
3 The regulatory standards for waiver of overpayments under FERS are substantially
similar, and indeed almost identical, to those under the Civil Service Retirement System
(CSRS). Compare 5 C.F.R. part 831, Subpart N, with 5 C.F.R. part 845, subpart C.
We find the case law interpreting the CSRS regulations to be instructive in interpreting
the FERS regulations.6
In this case, the administrative judge found that the appellant failed to
provide substantial evidence that she was without fault in creating the
overpayment. ID at 6. The appellant disputes this finding on review, noting that
she reported her income to OPM every year as required and lacked sufficient
information to calculate the current rate of basic pay for her former position.
PFR File, Tab 1 at 5. Recognizing the difficulties involved in proving a negative,
i.e., the absence of fault, we agree with the appellant that she provided substantial
evidence on the issue. The pertinent considerations in finding fault are as
follows: (1) whether payment resulted from the individual’s incorrect but not
necessarily fraudulent statement, which she should have known to be incorrect;
(2) whether payment resulted from the individual’s failure to disclose material
facts in her possession which she should have known to be material;
or (3) whether she accepted a payment which she knew or should have known to
be erroneous. Maseuli v. Office of Personnel Management , 111 M.S.P.R. 439, ¶ 7
(2009); 5 C.F.R. § 845.302(a). There is no indication that this appellant ever
withheld any information or supplied any materially incorrect information to
OPM. Furthermore, considering that OPM itself had significant difficulty in
determining whether the appellant had been restored to earning capacity in 2014,
we find substantial evidence that the appellant could not reasonably have been
expected to know that she had so been restored at the time she accepted the
annuity overpayments. See Hudson v. Office of Personnel Management ,
87 M.S.P.R. 385, ¶¶ 7-11 (2000).
Nevertheless, we agree with the administrative judge that the appellant did
not provide substantial evidence that recovery would be against equity and good
conscience. ID at 6. Recovery is against equity and good conscience when it
would cause financial hardship for the person from whom it is sought, the
recipient of the overpayment relied on the overpayment to her detriment, or
recovery would be unconscionable under the circumstances. 5 C.F.R. §845.303.7
In this case, the appellant argues that collection of the overpayment would cause
financial hardship and would be unconscionable.4 PFR File, Tab 1 at 5-6.
Under 5 C.F.R. § 845.304, financial hardship may be deemed to exist when
the appellant needs substantially all of her current income and liquid assets to
meet current ordinary and necessary living expenses and liabilities. However, the
appellant has not submitted any evidence of her assets, income, or living expenses
that might support a finding that recovery would cause her financial hardship.
As noted in the initial decision, the appellant has not submitted a financial
resources questionnaire, which would contain the pertinent information.
Cf. Stewart v. Office of Personnel Management , 102 M.S.P.R. 272, ¶ 8 (2006)
(finding that recovery would cause financial hardship based on a financial
resources questionnaire that showed the appellant needed all of her current
income to meet ordinary and necessary living expenses). Nor has the appellant
provided any other evidence that might support her claim of financial hardship by
alternative means, such as evidence of her present ability to pay or evidence of
her other family members’ income and living expenses. See 5 C.F.R. § 845.304.
The appellant argues that she could face financial hardship in the future because
she might be forced to leave the workforce prematurely due to a recurrence of her
autoimmune condition. PFR File, Tab 1 at 5. However, even if we were to
accept this assertion, which is unsupported by any medical or financial evidence,
an individual’s financial ability to pay is considered at the time collection is
scheduled to be made and not at some point in the future. Delange v. Office of
Personnel Management , 30 M.S.P.R. 177, 178-79 (1986).
Waivers based on unconscionability cover cases where the circumstances
surrounding an annuity overpayment, although not meeting the tests for waiver
based on either financial hardship or detrimental reliance, nevertheless merit
special consideration and treatment under the totality of the circumstances.
4 The appellant does not argue that she relied to her detriment on the overpayments, and
there is nothing in the record to suggest that she might have done so.8
Aguon v. Office of Personnel Management , 42 M.S.P.R. 540, 549-50 (1989).
For instance, recovery of an overpayment may be unconscionable when there has
been an exceptionally lengthy delay by OPM in adjusting an annuity, OPM failed
to respond to an annuitant’s inquiries regarding overpayment, OPM has been
otherwise grossly negligent, the appellant has been misinformed, or the appellant
has personal limitations that would make collection manifestly unfair.
Markanich v. Office of Personnel Management , 104 M.S.P.R. 323, ¶ 14 (2006).
Unconscionability of collection is a high standard that will only be found under
exceptional circumstances. Taylor v. Office of Personnel Management ,
87 M.S.P.R. 214, ¶ 18 (2000); see, e.g., Estate of Konschak v. Office of Personnel
Management, 84 M.S.P.R. 555, ¶¶ 13-14 (1999) (finding that OPM’s 22-year
delay in discovering an overpayment of more than $100,000 rendered collection
of that amount from an 82-year old annuitant unconscionable).
In this case, the appellant argues unconscionability based on her lack of
fault in creating the overpayment, OPM’s delay in discovering the overpayment,
and her age and medical condition. PFR File, Tab 1 at 5-6. However, under
OPM’s regulations, lack of fault is a separate inquiry from unconscionability.
See 5 C.F.R. § 845.301. Furthermore, although OPM allowed the overpayment to
accrue for 9 months before discovering and stopping it, we find that this delay
was not exceptionally lengthy. IAF, Tab 7 at 23. An “exceptionally lengthy”
delay would typically be measured in years rather than months, and even a 10-
year delay in discovering an overpayment may not render collection
unconscionable if OPM acts promptly once it becomes aware of the matter.
See Taylor, 87 M.S.P.R. 214, ¶ 20. Regarding the appellant’s personal
limitations, we again note that she has provided no medical evidence regarding
her condition, and that she is now gainfully employed in the Civil Service with a
salary comfortably exceeding that of her former position. IAF, Tab 7 at 77, 106;
see James v. Office of Personnel Management , 72 M.S.P.R. 211, 219 n.4 (1996)
(finding a lack of evidence that the appellant’s medical condition rendered9
collection unconscionable because there was no evidence of the severity of his
condition or evidence of a relationship between his condition and the debt
collection).
For these reasons, we agree with the administrative judge that the appellant
failed to provide substantial evidence that collection of the overpayment would be
against equity and good conscience. ID at 6. Nor has the appellant requested an
adjustment of the collection schedule or provided any information to suggest that
such an adjustment might be warranted. ID at 6-7; see generally 5 C.F.R.
§§ 845.301, .307 (standard for proving entitlement to an adjustment in the
collection schedule). Accordingly, we affirm the initial decision, as modified
above.
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.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.10
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 you11
were affected by an action that is appealable to the Board and that 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: 12
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (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. 13
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.14 | Harnois_NancyDC-0845-19-0583-I-2_Final_Order.pdf | 2024-08-08 | NANCY HARNOIS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-0845-19-0583-I-2, August 8, 2024 | DC-0845-19-0583-I-2 | NP |
741 | https://www.mspb.gov/decisions/nonprecedential/Shields_Noriko_S_DC-831M-20-0606-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NORIKO S. SHIELDS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency,
and
FRANCES J. SHIELDS
Intervenor.DOCKET NUMBER
DC-831M-20-0606-I-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Noriko S. Shields , Springfield, Virginia, pro se.
Carla Robinson , Washington, D.C., for the agency.
Frances J. Shields , Delray Beach, Florida, pro se.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) finding that she had been overpaid in survivor annuity benefits under the
Civil Service Retirement System. 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 correct the administrative judge’s statement as to when OPM
received certified copies of the divorce decree and property settlement agreement
(PSA), we AFFIRM the initial decision.
The appellant noted below that OPM issued its August 2017 initial decision
before it received a certified copy of the court order in September 2017. Initial
Appeal File (IAF), Tab 43 at 4-5. She argued that OPM erred in issuing its initial
decision 1 month prior to receiving a certified copy. Id. The administrative
judge found that the intervenor included certified copies of the divorce decree and
PSA with her January 2017 application for survivor benefits. IAF, Tab 44, Initial
Decision (ID) at 3. On review, the appellant disputes this determination. Petition
for Review (PFR) File, Tab 1 at 9-10.2
The appellant’s argument appears to be one of harmful procedural error by
OPM. She may be alleging that the intervenor’s January 2017 application for
survivor benefits was not in compliance with 5 C.F.R. § 838.721(b)(1)(i), which
requires that an application for a former spouse survivor annuity “be accompanied
by . . . [a] certified copy of the court order.” Although the administrative judge
stated that the intervenor included certified copies of the divorce decree and PSA
with her January 2017 application for survivor benefits, this finding was
incorrect. ID at 3 (citing IAF, Tab 29 at 33-40). Instead, the intervenor stated
that the divorce decree was “already submitted.” IAF, Tab 30 at 36.
OPM provided copies of the divorce decree and PSA that were certified in
September 2017 by a clerk of the court that issued the divorce decree. Id. at 5-13.
Here, OPM issued its initial decision in August 2017. IAF, Tab 29 at 19. Thus,
based on the record, the appellant appears to be correct that OPM issued its initial
decision before receiving a certified copy of the court order. However, even
assuming doing so was error, the appellant has not shown that the alleged
procedural error was likely to have caused OPM to reach a conclusion different
from the one it would have reached in the absence or cure of the error. See Adler
v. Office of Personnel Management , 114 M.S.P.R. 651, ¶ 13 (2010) (finding that
OPM’s alleged regulatory violations in processing a former spouse annuity did
not provide a basis for granting review), aff’d per curiam , 437 F. App’x 928 (Fed.
Cir. 2011). Within 1 month after OPM issued its initial decision, the court
provided evidence that confirmed OPM’s decision was correct. IAF, Tab 30 at 7,
13.
Finally, OPM has advised the Board that it may seek recovery of any debt
remaining upon an appellant’s death from her estate or other responsible party. A
party responsible for any debt remaining upon the appellant’s death may include
an heir (spouse, child or other) who is deriving a benefit from the appellant’s
Federal benefits, an heir or other person acting as the representative of the estate
if, for example, the representative fails to pay the United States before paying the3
claims of other creditors in accordance with 31 U.S.C. § 3713(b), or transferees
or distributers of the appellant’s estate. Pierotti v. Office of Personnel
Management, 124 M.S.P.R. 103, ¶ 13 (2016).
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).
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.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. 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 | Shields_Noriko_S_DC-831M-20-0606-I-1_Final_Order.pdf | 2024-08-08 | NORIKO S. SHIELDS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DC-831M-20-0606-I-1, August 8, 2024 | DC-831M-20-0606-I-1 | NP |
742 | https://www.mspb.gov/decisions/nonprecedential/Davis_RosettaDA-315H-23-0023-I-1_and_DA-1221-23-0247-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROSETTA DAVIS,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-315H-23-0023-I-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Rosetta Davis , San Antonio, Texas, pro se.
Sundrea Richardson and Javon Coatie , 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.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her 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
based on an erroneous interpretation of statute or regulation or the erroneous
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
application of the law to the facts of the case; the administrative judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, we conclude that the petitioner has not established any basis under section
1201.115 for granting the petition for review. Therefore, we DENY the petition
for review and AFFIRM the initial decision, which is now the Board’s final
decision. 5 C.F.R. § 1201.113(b).
¶2We have considered all of the appellant’s arguments on review ; however,
we find that none provide a basis to disturb the administrative judge’s
conclusion that the appellant failed to make a nonfrivolous allegation that she has
either a statutory or a regulatory right to appeal her termination to the Board .
Petition for Review (PFR) File, Tab 1 at 4-5, Tab 5 at 4-6; Initial Appeal File
(IAF), Tab 11, Initial Decision (ID) at 4-5. For example, the appellant asserts
that her service computation date was recently amended to accurately reflect
that she has over 20 years of total Federal service. PFR File, Tab 1 at 4.
However, the appellant’s submissions indicate, and she does not dispute, that
she had a 5-month break in service between her prior employment with the
U.S. Postal Service and her employment with the agency; thus, she lacks
statutory Board appeal rights. IAF, Tab 1 at 4, Tab 4 at 13; see 5 U.S.C.
§ 7511(a); see also Hurston v. Department of the Army , 113 M.S.P.R. 34, ¶ 9
(2010). The appellant also alleges that discrimination precipitated her removal;
however, as set forth in the initial decision, absent an otherwise appealable
action, the Board lacks jurisdiction over the appellant’s discrimination-related
claims. PFR File, Tab 1 at 5; ID at 6; see Wren v. Department of the Army ,2
2 M.S.P.R. 1, 2 (1980) (explaining that prohibited personnel practices under
5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction), aff’d,
681 F.2d 867, 871-73 (D.C. Cir. 1982).
¶3The appellant asserts that she has filed a complaint with the Office of
Special Counsel. PFR File, Tab 1 at 5. We interpret this assertion as an
argument that the Board has individual right of action (IRA) jurisdiction over
her appeal. Notably, the appellant made whistleblower-related allegations
before the administrative judge; however, the administrative judge did not
provide her with notice of the jurisdictional burden applicable to IRA appeals.
E.g., IAF, Tab 4 at 5; see Burgess v. Merit Systems Protection Board , 758 F.2d
641, 643-44 (Fed. Cir. 1985) (indicating that an appellant must receive explicit
information on what is required to establish an appealable jurisdictional issue);
see also Baggan v. Department of State , 109 M.S.P.R. 572, ¶ 10 (2008)
(explaining that, even when the Board lacks direct jurisdiction over the
termination of a probationary employee, the employee may bring an IRA appeal
before the Board) . We find, however, that this oversight does not constitute
material error. Indeed, subsequent to filing this appeal, the appellant filed an IRA
appeal with the Board, i.e., Davis v. Department of the Treasury , MSPB Docket
No. DA-1221-23-0247-W-1, wherein she reasserted the same
whistleblowing-related allegations. The administrative judge assigned to the
appellant’s IRA appeal provided her with notice of the applicable jurisdictional
burden and adjudicated these claims. Davis v. Department of the Treasury ,
MSPB Docket No. DA-1221-23-0247-W-1, Initial Appeal File, Tab 4 at 2-6,
Tab 19, Initial Decision.2 Thus, a different outcome is not warranted.
2 The appellant has filed a petition for review of this initial decision, which dismissed
her IRA appeal for lack of jurisdiction. Davis v. Department of the Treasury , MSPB
Docket No. DA-1221-23-0247-W-1, Petition for Review File, Tab 1. We have,
concurrent with the issuance of this final order, issued a final order affirming the initial
decision regarding the appellant’s IRA appeal. We have considered whether any of the
claims raised by the appellant in her petition for review for her IRA appeal warrant a
different outcome in the instant appeal; however, we find that they do not. See Miles v.3
¶4The appellant provides additional documents with both her petition for
review and her reply, to include email correspondence and documents regarding
her employment with, and cases she has filed against, the U.S. Postal Service.
PFR File, Tab 1 at 7-11, Tab 5 at 8-9. 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 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). Here, all but one of the documents predate the initial
decision.3 In any event, none of the documents provide a basis to disturb the
administrative judge’s conclusions regarding jurisdiction. See Russo v.
Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating 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 agency also provides documents with its response, the
majority of which were included in the record before the administrative judge.
PFR File, Tab 4 at 10-20; see Meier v. Department of the Interior , 3 M.S.P.R.
247, 256 (1980) (explaining that evidence that is already part of the record is not
new). In any event, the agency’s additional documents are not material to the
outcome of this appeal. See Russo, 3 M.S.P.R. at 349.
¶5 Accordingly, we affirm the initial decision.
Department of Veterans Affairs , 84 M.S.P.R. 418, ¶ 6 (1999 ) (explaining that the Board
construes pro se pleadings liberally).
3 The sole document that does not predate the initial decision, i.e., a December 29, 2022
statement of earnings and leave, appears to have been provided to support the
appellant’s assertion that her service computation date was amended. PFR File, Tab 1
at 11. As discussed above, however, this assertion is not material to the jurisdictional
issue. 4
NOTICE OF APPEAL RIGHTS4
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any6
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s7
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 8
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.9 | Davis_RosettaDA-315H-23-0023-I-1_and_DA-1221-23-0247-W-1_Final_Order.pdf | 2024-08-08 | ROSETTA DAVIS v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-315H-23-0023-I-1, August 8, 2024 | DA-315H-23-0023-I-1 | NP |
743 | https://www.mspb.gov/decisions/nonprecedential/Dionne_ChristopherAT-3443-23-0274-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CHRISTOPHER DIONNE,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-3443-23-0274-I-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Dionne , Millington, Tennessee, pro se.
Marcus S. Lawrence Jr. , Esquire, Pensacola, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for lack of jurisdiction. On petition for review, the appellant
reasserts that his supervisor unlawfully seized and retained his personal
notebooks. 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.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
2 The appellant alleges, for the first time on review, that his supervisor seized his
personal notebooks in retaliation for his filing of a complaint with the Office of Special
Counsel (OSC). To the extent the appellant is suggesting that he has filed a complaint
with OSC seeking corrective action and has exhausted his administrative remedy, he
may file an individual right of action appeal with the appropriate regional office in
accordance with the Board’s procedures. See 5 C.F.R. §§ 1209.5-1209.6.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 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 | Dionne_ChristopherAT-3443-23-0274-I-1_Final_Order.pdf | 2024-08-08 | CHRISTOPHER DIONNE v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-3443-23-0274-I-1, August 8, 2024 | AT-3443-23-0274-I-1 | NP |
744 | https://www.mspb.gov/decisions/nonprecedential/Childs_CameronDC-315H-19-0783-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAMERON CHILDS,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-315H-19-0783-I-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Kerrie D. Riggs , Esquire, Washington, D.C., for the appellant.
Andrew Linenberg , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman*
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
*Chairman Harris recused herself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his probationary termination appeal for lack of jurisdiction. 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).
On petition for review, the appellant reasserts his arguments that the
agency’s notice of proposed termination during a probationary period was flawed
under 5 C.F.R. § 315.805(a) because the agency did not provide him with
sufficient details or documents regarding the reasons for the proposed action, and
that the agency’s flawed notice prejudiced his ability to respond to the proposed
action. Petition for Review File, Tab 1; Initial Appeal File (IAF), Tab 6 at 4-8.
After considering the appellant’s arguments on review, we discern no reason to
disturb the administrative judge’s finding that the appellant has failed to
nonfrivolously allege2 facts entitling him to a hearing over his probationary
termination pursuant to 5 C.F.R. § 315.806. IAF, Tab 11, Initial Decision at 6-8;
see James v. Department of the Army , 55 M.S.P.R. 124, 126 (1992); see also
Munson v. Department of Justice , 55 M.S.P.R. 246, 250 (1992) (finding that the
agency was not required by 5 C.F.R. § 315.805 to afford the appellant access to
“investigative documents” relied upon by the agency).
2 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s).2
Accordingly, we affirm the initial decision dismissing this probationary
termination appeal for lack of jurisdiction.
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 | Childs_CameronDC-315H-19-0783-I-1_Final_Order.pdf | 2024-08-08 | CAMERON CHILDS v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-315H-19-0783-I-1, August 8, 2024 | DC-315H-19-0783-I-1 | NP |
745 | https://www.mspb.gov/decisions/nonprecedential/Lind_Jonathan_J_DE-1221-19-0312-W-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JONATHAN J. LIND,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Agency.DOCKET NUMBER
DE-1221-19-0312-W-2
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Raven Lind , Pine, Colorado, for the appellant.
Chen Song , Esquire, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Heny J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication
of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied the appellant corrective action in his individual right of action (IRA)
appeal because he failed to establish that his protected disclosures were a
contributing factor in a covered personnel action. Generally, we grant petitions
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that all of the appellant’s disclosures were protected and that
his detail to another position was a covered personnel action, to update the
contributing factor analysis accordingly, and to include an analysis as to whether
the agency established by clear and convincing evidence that it would have taken
the action absent whistleblowing, we AFFIRM the initial decision.
BACKGROUND
On December 15, 2013, the appellant began his employment as an
Information Technology (IT) Specialist with the agency.2 Lind v. Department of
the Interior, MSPB Docket No. DE-1221-19-0312-W-1, Initial Appeal File (W-1
IAF), Tab 10 at 122. As part of his duties, the appellant was the WebTA system
administrator and was responsible for ensuring that the system was performing
successfully.3 Hearing Recording (HR) (testimony of appellant). According to
the appellant, in April 2016, while troubleshooting some performance issues, he
discovered that the office was not in compliance with the minimum database
2 The appellant is currently on disability retirement and no longer works for the agency.
Hearing Recording (testimony of appellant).
3 WebTA is a web-based time and attendance system used by some Federal agencies.2
requirements, which was causing significant performance issues with WebTA.
W-1 IAF, Tab 15 at 43; HR (testimony of appellant). The appellant alerted his
first-line supervisor, NM, that the office was not meeting the minimum database
requirements, but according to the appellant, NM did not address the issue. W-1
IAF, Tab 15 at 43-44; HR (testimony of appellant). The appellant further
explained that in June 2016 during a meeting with NM and the appellant’s
second-line supervisor, TL, NM told TL that the office was meeting the minimum
database requirements, which prompted the appellant to contradict NM and
inform TL that the office was not, in fact, meeting those requirements. W-1 IAF,
Tab 15 at 44-45; HR (testimony of appellant). According to the appellant, NM
then claimed that the hardware did not exist to meet the minimum database
requirements, and the appellant again contradicted him and informed TL that the
hardware did exist. W-1 IAF, Tab 15 at 44-45; HR (testimony of appellant). At
the end of this meeting, TL ordered NM to meet the minimum database
requirements. W-1 IAF, Tab 15 at 45; HR (testimony of appellant, testimony of
TL).
Based on NM’s behavior, the appellant believed that NM was attempting to
undermine the effectiveness of WebTA, a belief that was further supported when
the appellant allegedly overheard NM say that he was going to make the server so
expensive that “nobody will want to pay for it.” W-1 IAF, Tab 15 at 47; HR
(testimony of appellant). Therefore, the appellant thought NM was sabotaging
WebTA when he purchased an excessively large server that would waste hundreds
of thousands of dollars in additional licensing, annual maintenance, and other
expenses. W-1 IAF, Tab 15 at 48; HR (testimony of appellant).
In February 2017, the appellant met with TL and TL’s Deputy, CT, to voice
his concerns about NM sabotaging WebTA by purchasing an excessively large
server. W-1 IAF, Tab 1 at 16; HR (testimony of appellant). In response, TL
dismissed the appellant’s concerns, telling the appellant that sometimes he may
not agree with his boss’s decision. W-1 IAF, Tab 15 at 47; HR (testimony of3
appellant). Months later, in October 2017, NM issued the appellant his
performance evaluation in which NM rated the appellant lower in one critical
element, thus lowering the appellant’s summary rating from exceptional to
superior. W-1 IAF, Tab 15 at 8, Tab 17 at 59.
Concerned about his performance evaluation, on December 1, 2017, the
appellant spoke to CT and explained that he believed that his evaluation was
lowered by NM in retaliation for his February 2017 disclosure. W-1 IAF, Tab 1
at 16; HR (testimony of appellant). During this conversation, the appellant also
disclosed that NM had sent him the interview questions ahead of his interview for
the IT Specialist position. W-1 IAF, Tab 1 at 16, Tab 15 at 64; HR (testimony of
appellant). TL was informed of the appellant’s allegations, and on February 2,
2018, TL officially notified the appellant that he would be detailed to the Time
and Attendance Branch, under a different supervisor; however, according to the
appellant, his duties largely remained the same. W-1 IAF, Tab 15 at 101; HR
(testimony of appellant). This detail coincided with an administrative
investigation of NM, which ultimately found that NM had committed a prohibited
personnel practice by sending the appellant the interview questions prior to his
interview. W-1 IAF, Tab 15 at 29-30. As a result, the agency removed NM from
his position effective July 24, 2018. W-1 IAF, Tab 13 at 57.
At the end of his detail, the appellant was placed under the supervision of a
new first-line supervisor, MR, and a new second-line supervisor, CK.4 HR
(testimony of MR, testimony of CK). On August 1, 2018, the appellant spoke to
TL and informed him that he feared retaliation from his new supervisors, while
also disclosing that his previous concerns regarding the server had not yet been
addressed. W-1 IAF, Tab 1 at 17. Under the supervision of MR and CK, the
appellant asserts that he suffered continued retaliation, specifically when MR
4 Although the official notification states the detail would last 30 days, TL did not end
the appellant’s detail until July 30, 2017, after the completion of the investigation of
NM and NM’s subsequent removal. Lind v. Department of the Interior ,
DE-1221-19-0312-W-2, Appeal File, Tab 7 at 127.4
failed to select him as acting team lead, when MR and CK denied him a third day
of telework, and when MR moved him to a different cubicle. Id.; HR (testimony
of appellant).
The appellant filed a complaint with the Office of Special Counsel (OSC)
alleging whistleblower retaliation. W-1 IAF, Tab 1 at 7-22. OSC subsequently
closed the appellant’s complaint and issued him a letter advising him of his right
to appeal to the Board. Id. at 7-8. The appellant filed an IRA appeal with the
Board and requested a hearing. Id. at 2. After finding jurisdiction and holding a
hearing, the administrative judge issued an initial decision finding that the
appellant was not entitled to corrective action. Lind v. Department of the
Interior, DE-1221-19-0312-W-2, Appeal File (W-2 AF), Tab 32, Initial Decision
(ID).
Specifically, the administrative judge found that the appellant only proved
that the December 2017 disclosure was protected, i.e., the statements that
disclosed that NM had provided him with the interview questions in advance of
the interview. ID at 8. As for the February 2017 and August 2018 disclosures,
which disclosed issues with the WebTA server and a fear of retaliation by new
supervisors CK and MR, the administrative judge found that the appellant failed
to establish that he had a reasonable belief that these disclosures evidenced any of
the types of wrongdoing covered by 5 U.S.C. § 2302(b)(8).5 ID at 4-8. Next, the
5 During the hearing, the appellant testified that he believed NM turned against him
because he contradicted NM in front of TL during the June 2016 meeting. HR
(testimony of appellant). To the extent that the appellant alleges that the statements
made during the June 2016 meeting were a protected disclosure, he did not raise this
disclosure in his OSC complaint, and thus, the Board has no authority to consider it.
Boechler v. Department of Interior , 109 M.S.P.R. 638, ¶ 6 (2008) (affirming that the
Board may only consider claims of whistleblowing that the appellant raised before
OSC), aff’d, 328 F. App’x 660 (Fed. Cir. 2009); W -1 IAF, Tab 1 at 9-22. Furthermore,
in a prehearing ruling finding Board jurisdiction over the appeal, the administrative
judge did not include the statements made during the June 2016 meeting as a protected
disclosure at issue in this appeal. W -1 IAF, Tab 26 at 6-8. The administrative judge
invited any objections or corrections to his jurisdictional ruling to be made within 7
days of the order. Id. at 8. The appellant did not make any objections to the
administrative judge’s ruling. Thus, we discern no basis to disturb the administrative5
administrative judge found that the lowered 2017 performance evaluation and the
denial of a third day of telework were covered personnel actions. ID at 9-12.
However, he also found that the appellant’s detail, nonselection for acting team
lead, and a cubicle change were not covered personnel actions under 5 U.S.C.
§ 2302(a)(2)(A).6 Id.
Finally, the administrative judge found that the appellant failed to show
that the one disclosure he did find to be protected, the December 2017 disclosure
about the interview questions, was a contributing factor to either the lowered
performance appraisal or the denial of a third day of telework. Id. Accordingly,
because the appellant failed to establish that his protected disclosure was a
contributing factor in a covered personnel action, the administrative judge
determined that the appellant failed to establish that he was entitled to corrective
action. ID at 13.
The appellant timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. In support of his petition, the appellant argues that the administrative
judge “failed to consider all evidence” and that there was “inconsistent/incorrect
documentation from agency and MSPB” and claims that, due to the pandemic, he
judge’s finding. See Brown v. Department of the Army , 96 M.S.P.R. 232, ¶ 6 (2004)
(rejecting an agency’s argument on review that the administrative judge
mischaracterized the agency’s charge because the agency failed to preserve an objection
when it did not object to the administrative judge’s prehearing order).
6 The appellant alleged two other personnel actions in his OSC complaint, the denial of
a transfer, and a reassignment to a new, more onerous project. W-1 IAF, Tab 1 at 17.
These matters were not listed in OSC’s summary of the personnel actions raised by the
appellant. Id. at 8. In a prehearing ruling finding Board jurisdiction over the appeal,
the administrative judge did not include these matters in the list of personnel actions at
issue. W-1 IAF, Tab 26 at 6-8. The administrative judge invited any objections or
corrections to his jurisdictional ruling to be made within 7 days of the order. Id. at 8.
The appellant did not make any objections to the administrative judge’s ruling. Thus,
we discern no basis to disturb the administrative judge’s finding. See Brown,
96 M.S.P.R. 232, ¶ 6 (rejecting an agency’s argument on review that the administrative
judge mischaracterized the agency’s charge because the agency failed to preserve an
objection when it did not object to the administrative judge’s prehearing order). 6
was unable to “contact/utilize defense witnesses” and was denied an in-person
hearing. Id. at 4. The agency did not respond to the appellant’s petition.
DISCUSSION OF ARGUMENTS ON REVIEW
We have considered the appellant’s arguments on review and find that they
do not show error in the initial decision or the administrative judge’s processing
of the appeal. While the appellant asserts that the administrative judge did not
consider all of the evidence and that there was “inconsistent/incorrect
documentation,” he provides no details to support his claim. Thus, we find no
basis to disturb the initial decision in this regard. See Weaver v. Department of
the Navy, 2 M.S.P.R. 129, 133 (1980), review denied, 669 F.2d 613 (9th Cir.
1982) (per curiam) (finding that, before the Board 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); Marques v. Department of Health & Human
Services, 22 M.S.P.R. 129, 132 (1984) (finding that an administrative judge’s
failure to mention all of the evidence of record does not mean that he did not
consider it in reaching his decision), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
(Table). Regarding the appellant’s claim that he was unable to contact witnesses
because of the pandemic, he again provides no specifics in support of his claim.
Finally, regarding his claim that he was denied an in-person hearing, the Board
has held that an administrative judge may hold a video hearing, regardless of
whether the appellant objects. Koehler v. Department of the Air Force ,
99 M.S.P.R. 82, ¶¶ 10, 13 (2005). Thus, in sum, the appellant’s arguments on
review do not show error in the initial decision; however, based on our review of
the record, we discern a number of errors in the initial decision that are discussed
below.
Federal agencies are prohibited from taking, failing to take, or threatening
to take or fail to take any personnel action against an employee in a covered7
position because of the disclosure of information that the employee reasonably
believes to be evidence of a violation of law, rule, or regulation, gross
management, a gross waste of funds, an abuse of authority, or a substantial and
specific danger to public health and safety. 5 U.S.C. § 2302(b)(8). The appellant
is required to establish a prima facie case of whistleblower retaliation by proving
by preponderant evidence that he made a protected disclosure that was a
contributing factor in a personnel action taken against him. 5 U.S.C. § 1221(e)
(1); Mastrullo v. Department of Labor , 123 M.S.P.R. 110, ¶ 12 (2015). To
establish that he made a protected disclosure, the appellant must demonstrate by
preponderant evidence that he disclosed information that he reasonably believed
evidenced a situation covered by 5 U.S.C. § 2302(b)(8)(A). Mithen v.
Department of Veterans Affairs , 119 M.S.P.R. 215, ¶ 13 (2013). If the appellant
makes out a prima facie case of whistleblower retaliation, then the agency is
given the opportunity to prove, by clear and convincing evidence, that it would
have taken the same personnel action in the absence of the protected disclosure.
5 U.S.C. § 1221(e)(1)-(2); Mastrullo, 123 M.S.P.R. 110, ¶ 12.
The administrative judge erred in finding that the appellant did not have a
reasonable belief that he disclosed one of the types of wrongdoing set forth in
5 U.S.C. § 2302(b)(8) in February 2017 and August 2018.
In the initial decision, the administrative judge determined that the
appellant failed to prove that he made a protected disclosure in February 2017
when he disclosed his concerns about the server. ID at 5-7. The administrative
judge reasoned that the appellant did not hold a reasonable belief that his
February 2017 disclosure evidenced one of the types of misconduct described by
5 U.S.C. § 2302(b)(8) because the appellant’s allegations were “factually
inaccurate.” Id. Applying the same reasoning, the administrative judge found
that the appellant’s August 2018 disclosure was similarly not protected, as it was
a reiteration of the February 2017 disclosure. ID at 8. 8
The administrative judge erred in his interpretation of the reasonable belief
standard. 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. Mithen, 119 M.S.P.R. 215, ¶ 13. 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)(ii); rather, the appellant must show that the matter
disclosed was one which a reasonable person in his position would believe
evidenced any of the situations specified in 5 U.S.C. § 2302(b)(8)(A). Schnell v.
Department of the Army , 114 M.S.P.R. 83, ¶ 19 (2010).
We believe the record establishes that the appellant held a reasonable belief
that his February 2017 and August 2018 disclosures regarding the server
evidenced gross mismanagement and/or gross waste of funds.7 First, NM was not
forthright with TL regarding whether the office was meeting the minimum
database requirements. W-1 IAF, Tab 15 at 44-45; HR (testimony of appellant,
testimony of TL). Additionally, the appellant overheard NM say that he was
going to make the server “so . . . expensive that nobody will want to pay for it.”
W-1 IAF, Tab 15 at 47; HR (testimony of appellant). This is corroborated by
another employee, who confirmed that NM told him “that if it was the last thing
[NM] did, he was going to get [W]ebTA removed from the product line offered
by [the office].” W-1 IAF, Tab 15 at 96. Based on NM’s behavior, the appellant
believed that NM was actively undermining WebTA by selecting a server that was
twice as large as necessary with the intention of costing the agency hundreds of
7 Gross mismanagement means a management action or inaction that creates a
substantial risk of significant adverse impact on the agency’s ability to accomplish its
mission. Embree v. Department of the Treasury , 70 M.S.P.R. 79, 85 (1996). Also, an
employee discloses a gross waste of funds when he alleges that a more than debatable
expenditure is significantly out of proportion to the benefit reasonably expected to
accrue to the government. Id. 9
thousands of dollars in additional licensing, annual maintenance, and other costs.
HR (testimony of appellant).
In light of these circumstances, we believe a disinterested observer with
knowledge of the facts known to and readily ascertainable by the appellant could
reasonably conclude that his disclosures regarding the server evidenced a gross
waste of funds and/or gross mismanagement. Therefore, we find that the
appellant’s February 2017 disclosure is protected, and to the extent that the
August 2018 disclosure was an iteration of the same matter, it is similarly
protected.8 See Schneider v. Department of Homeland Security , 98 M.S.P.R. 377,
¶ 15 (2005) (stating that an appellant’s protected disclosures remains protected at
each iteration).
The administrative judge erred in determining that the appellant’s detail was not a
covered personnel action.
The administrative judge found that the appellant’s detail was not a covered
personnel action “because it was not adverse to the appellant.” ID at 10.
However, 5 U.S.C. § 2302 does not require that a personnel action be “adverse”
to an appellant to be covered. 5 U.S.C. § 2302(a)(2)(A), 2302(b)(8). Indeed, a
detail is explicitly listed as a covered personnel action in the statute. 5 U.S.C.
§ 2302(a)(2)(A)(iv). Accordingly, whether the appellant considered the detail to
be adverse is not relevant to the determination as to whether it was a covered
8 The appellant also alleged that his statement that he feared retaliation by his new
supervisors, CK and MR, was protected. W-1 IAF, Tab 1 at 17; HR (testimony of
appellant). Disclosures must be specific and detailed, not vague allegations of
wrongdoing. Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 6 (2016).
Conclusory, vague, or unsupported allegations are insufficient to qualify as disclosures.
McDonnell v. Department of Agriculture , 108 M.S.P.R. 443, ¶ 7 (2008). We find that a
generalized “fear” of retaliation without any explanation as to the basis for such fear is
insufficiently specific or detailed to constitute a disclosure. Furthermore, we note that
there is no evidence that MR or CK had any awareness of the appellant’s disclosures as
of August 1, 2018, when he made that claim – thus, the appellant’s “fear” of retaliation
was wholly unsupported. Thus, we agree with the administrative judge’s decision that
the appellant’s disclosure regarding his fear of retaliation is not protected. ID at 8. 10
personnel action. Thus, the administrative judge was incorrect in finding that the
appellant’s 2018 detail was not a covered personnel action. ID at 10.
However, we agree with the administrative judge that the agency’s failure
to select the appellant for the acting team lead role and the cubicle change are not
covered personnel actions under 5 U.S.C. § 2302. ID at 10-13. Neither of these
actions are expressly named in 5 U.S.C. § 2302(a)(2)(A), and under the
circumstances present here, we do not find that these acts fall into the statute’s
catchall provision, as neither qualifies as a “significant change in duties,
responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). The
acting team lead position was nothing more than a temporary role involving
minor changes in responsibilities for a limited timeframe while MR was on
leave.9 HR (testimony of MR). As for the cubicle change, the appellant was
moved to a cubicle with windows in the same area and was promptly returned to
his windowless cubicle on his request. HR (testimony of appellant, testimony of
MR). We do not believe this short-lived cubicle change constitutes a “significant
change” in the appellant’s working conditions pursuant to 5 U.S.C. § 2302(a)(2)
(A)(xii). Accordingly, we agree with the administrative judge that neither of
these personnel actions are covered under 5 U.S.C. § 2302. ID at 10-13.
The appellant met his burden of showing that a protected disclosure was a
contributing factor to a covered personnel action.
To prevail on the merits of an IRA appeal, an appellant must meet his
initial burden of establishing by preponderance of the evidence that his
whistleblowing activity was a contributing factor in the personnel actions in
dispute. Mithen, 119 M.S.P.R. 215, ¶ 11. One way for an appellant to meet the
contributing factor standard is by satisfying the knowledge/timing test, i.e., by
demonstrating that the official taking the personnel action knew of the disclosure
and the personnel action occurred within a period of time such that a reasonable
9 Nothing in the record suggests that the assignment to the acting team lead position
would have constituted a detail or a promotion.11
person could conclude that the disclosure was a contributing factor in personnel
action.10 Id.; 5 U.S.C. § 1221(e)(1). We limit our contributing factor review to
the three remaining personnel actions at issue, i.e., the lowered 2017 performance
appraisal, the February 2018 detail, and the denial of a third day of telework, and
the three protected disclosures.
The appellant’s protected disclosures were a contributing factor in
the February 2018 detail.
First, we find that the appellant established that his protected disclosures
were a contributing factor in the February 2018 detail. TL admitted to being
aware of the appellant’s December 2017 statements that disclosed that NM sent
the interview questions prior to his scheduled interview. HR (testimony of TL).
Two months after the December 2017 disclosure, TL detailed the appellant to a
different branch. W-1 IAF, Tab 15 at 101. Accordingly, using the
knowledge/timing test, the appellant established that his protected disclosure was
a contributing factor in the agency’s decision to detail him.
The appellant failed to prove through the knowledge/timing test that
his protected disclosures were a contributing factor in his 2017
lowered performance appraisal.
Next, looking at the appellant’s 2017 lowered performance evaluation, we
find that the appellant failed to establish by preponderant evidence that NM had
knowledge of the appellant’s February 2017 disclosure regarding the server.11
The only evidence in the record as to whether NM had knowledge of the
10 In the initial decision, the administrative judge consistently cites to the legitimacy of
the agency’s reasoning for a personnel action as a basis for finding that the appellant
failed to meet the contributing factor standard. ID at 10-13. However, if the appellant
establishes the knowledge/timing test, he establishes that the protected disclosure was a
contributing factor in the personnel action, regardless of the reasonableness of the
agency’s actions. 5 U.S.C. § 1221(e)(1). The legitimacy of the agency’s action is,
however, part of the agency’s burden to prove by clear and convincing evidence that it
would have taken the personnel action absent the appellant’s protected disclosure.
Carr v. Social Security Administration , 185 F.3d 1318, 1323 (Fed. Cir. 1999) (stating
that the strength of the agency’s evidence in support of its personnel action is a factor
to be considered as part of the agency’s burden of proving by clear and convincing
evidence that it would have taken the same action absent whistleblowing). 12
appellant’s protected disclosure is the appellant’s testimony, in which the
appellant claims that in May 2017, NM told him that he did not appreciate the
appellant “circumventing” him on WebTA. HR (testimony of appellant).
Notably, there is no mention of this “circumventing” statement in either the
appellant’s signed or unsigned statements submitted during the administrative
investigation of NM. W-1 IAF, Tab 15 at 34-54, 68-75. Nevertheless, the
appellant’s testimony about this statement is vague and it is unclear whether he
believes that NM was referring specifically to the February 2017 disclosure or
more generally to the appellant’s concerns regarding WebTA. HR (testimony of
appellant). NM was aware that the appellant had issues with WebTA, as NM was
present on at least one occasion when the appellant raised such concerns with TL.
Id. However, establishing that NM had some general knowledge that the
appellant had discussed concerns with TL will not satisfy the knowledge/timing
test; the appellant must show that NM had knowledge of the appellant’s specific
protected disclosures. See Mithen, 119 M.S.P.R. 215, ¶ 11 (stating that the
appellant must prove by preponderant evidence that he made a protected
disclosure and that such whistleblowing activity was a contributing factor in a
personnel action); W-1 IAF, Tab 1 at 16-17. Here, there is no evidence that the
appellant informed NM of his February 2017 disclosure, and there is no evidence
that TL informed NM of the appellant’s disclosure.12 HR (testimony of appellant,
testimony of TL).
11 The other two protected disclosures made by the appellant occurred after the
performance evaluation was issued in October 2017, and thus, it would have been
temporally impossible for NM to have known of these disclosures. Sherman v.
Department of Homeland Securit y, 122 M.S.P.R. 644, ¶ 8 (2015) (stating that a
disclosure that occurs after the personnel action at issue was taken cannot be considered
a contributing factor in that personnel action).
12 CT did not testify during the hearing, and neither party requested CT as a witness.
W-2 AF, Tab 2 at 9-10. Thus, the record contains no testimony from CT as to whether
she informed NM of the disclosure. NM passed away prior to the hearing, and thus, we
do not have his testimony on the issue. W-1 IAF, Tab 12 at 81.13
Ultimately, the appellant has the burden of proof to establish, by
preponderant evidence, that the whistleblowing activity was a contributing factor
in an agency personnel action. Mithen, 119 M.S.P.R. 215, ¶ 11. The only
evidence that indicates that NM may have had knowledge of the February 2017
disclosure is a singular ambiguous statement alleged for the first time by the
appellant at the hearing without any corroborating evidence in the record. Given
the circumstances, we find that this statement is too nebulous and ambiguous on
its own to confirm that NM had knowledge of the appellant’s February 2017
disclosure. Accordingly, we find that the appellant failed to establish
contributing factor through the knowledge/timing test as it relates to the 2017
performance evaluation.
The appellant failed to prove through the knowledge/timing test that
his protected disclosures were a contributing factor in the decision
to deny him a third day of telework.
Turning to the denial of the third day of telework, we find that the
appellant failed to establish through the knowledge/timing test that his protected
disclosures were a contributing factor in the denial. We note that in the initial
decision the administrative judge found that the appellant failed to establish that
MR or CK had knowledge of his disclosures, relying on the appellant’s testimony
that he did not have any evidence that MR or CK were aware of his disclosures.
ID at 12. However, the record contains a personal memorandum written by MR,
dated August 16, 2018, stating that the appellant disclosed “that it was him to get
[NM] fired . . . and that [the appellant] started the investigation about the extra
$850,000 dollar server purchased.” W-1 IAF, Tab 12 at 46. Thus, we find that
MR did have knowledge of the appellant’s disclosures as of August 16, 2018.
Nonetheless, we find that the appellant failed to establish contributing factor
through the knowledge/timing test, as MR denied the appellant’s request for an
additional day of telework on August 13, 2018, several days before the appellant
told MR about his protected disclosures. Cf. Sherman v. Department of14
Homeland Security , 122 M.S.P.R. 644, ¶ 8 (2015) (stating that a disclosure that
occurs after the personnel action at issue was taken cannot be considered a
contributing factor in that personnel action); W -1 IAF, Tab 13 at 13-14.
The appellant failed to provide any other evidence to establish that his
whistleblowing activity was a contributing factor in the personnel actions at
issue.
The Board has held that, if an administrative judge determines that an
appellant has failed to satisfy the knowledge/timing test, he shall consider other
evidence, such as evidence pertaining to the strength or weakness of the agency’s
reasons for taking the personnel action, whether the whistleblowing was
personally directed at the official taking the action, or whether these individuals
had a desire or motive to retaliate against the appellant. Dorney v. Department of
the Army, 117 M.S.P.R. 480, ¶ 15 (2012). Considering these other factors, we do
not find that the appellant established that his protected disclosures were a
contributing factor in either the lowered 2017 performance rating or the denial of
the additional day of telework.
The appellant failed to present any evidence that his whistleblower
activity was a contributing factor in his lowered performance
evaluation.
The record does not establish that the appellant’s February 2017 disclosure
regarding the WebTA computer server was a contributing factor in NM’s decision
to lower the appellant’s rating from exceptional to superior. Looking at the
strength of the agency’s reasons for the superior rating, the record is sparse, as
NM passed away prior to the hearing, and thus, there is no testimony from him
regarding the issue. W-1 IAF, Tab 12 at 81. Therefore, the only information we
have regarding the reasons that NM decided to rate the appellant as superior is the
appraisal itself, which details the basis for the appellant’s summary rating.
W-1 IAF, Tab 15 at 8-23. The appellant has presented little evidence that
undermines this reasoning, alleging only that his contributions warranted an
exceptional rating and that NM “copied and pasted” information from the15
appellant’s self-evaluation. Id. at 52, 73; HR (testimony of appellant).
Ultimately, it is the burden of the appellant to establish that his protected
disclosure was a contributing factor to the personnel action, and we do not find
that the appellant has presented any evidence that would lead us to second-guess
NM’s decision to rate the appellant as superior. Mithen, 119 M.S.P.R. 215, ¶ 11.
Next, while we acknowledge that the appellant’s February 2017 disclosure
regarding the WebTA computer server directly involved NM, we also believe that
in order for NM to be motivated to retaliate, he must have knowledge of the
protected disclosure. In other words, in order for an official to have a motive or
desire to retaliate against an employee because he made a protected disclosure,
we believe it necessary first for the official to have knowledge of that employee’s
protected disclosure. See Dorney, 117 M.S.P.R. 480, ¶ 14 (stating that a
disclosure is a contributing factor if it affects an agency’s decision to threaten,
propose, take, or fail to take a personnel action). We do not find that NM had
knowledge of the appellant’s February 2017 disclosure; thus, we find it unlikely
that NM had a motive to retaliate against the appellant based on a protected
disclosure of which he was unaware. See Sherman, 122 M.S.P.R. 644, ¶ 9
(explaining that a disclosure could only have been a contributing factor in a
performance evaluation only if the official learned of it before making his
decision).
The appellant failed to present evidence establishing that his
whistleblowing activity was a contributing factor in the denial of a
third day of telework.
We also find that the appellant did not establish that his protected
disclosures were a contributing factor in the decision to deny him a third day of
telework. Looking at the strength of the agency’s explanation, we find that the
agency provided a reasonable and sound basis for the denial. Both MR and CK
testified that they denied the appellant’s request for a third day of telework
because they were trying to foster team interaction and encourage cross-training.16
(testimony of MR, testimony of CK). Furthermore, MR and CK confirmed that
they, generally, did not approve more than two days of telework – instead, as
explained by MR, if a third day of telework was needed, he preferred to approve
that on a situational basis. HR (testimony of MR, testimony of CK). Based on
the agency’s credible explanation, coupled with the fact that the appellant has not
introduced any evidence to undermine this explanation, we discern no support for
a finding of contributing factor.
Furthermore, we find the record devoid of any evidence that MR or CK was
the target of the appellant’s whistleblowing activity or that they displayed any
motive or desire to retaliate against the appellant for the same. MR and CK were
not involved, directly or indirectly, in any of the appellant’s protected
disclosures, which focused on NM’s actions.13 W-1 IAF, Tab 1 at 16 -17;
HR (testimony of appellant). Furthermore, MR only learned of the appellant’s
protected disclosures after he denied the appellant’s request for a third day of
telework. W-1 IAF, Tab 12 at 46, Tab 13 at 13-14. Thus, we do not find it more
likely than not that MR or CK had a motive to retaliate against the appellant for
his protected disclosures because they lacked knowledge of those disclosures.
Accordingly, we find that the appellant failed to provide evidence that his
protected disclosures were a contributing factor in the decision to deny him a
third day of telework.
The agency established by clear and convincing evidence that it would have
detailed the appellant absent his protected disclosures
We next turn to the question of whether the agency proved by clear and
convincing evidence that it would have detailed the appellant absent his protected
activity. 5 U.S.C. § 1221(e)(1). In determining whether an agency has met its
burden, the Board will consider all relevant factors, including the following:
(1) the strength of agency’s evidence in support of its action; (2) the existence
13 While the appellant alleged initially that his disclosure that he feared retaliation from
CK and MR was protected, as found previously in this decision, such a disclosure is not
protected. W-1 IAF, Tab 1 at 17. 17
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 do not engage in such protected activity, but who
are otherwise similarly situated. Alarid v. Department of the Army , 122 M.S.P.R.
600, ¶ 14 (2015); see Carr v. Social Security Administration , 185 F.3d 1318, 1323
(Fed. Cir. 1999). The Board must consider all pertinent evidence in the record
and must not exclude or ignore countervailing evidence by looking only at
evidence that supports the agency’s position. Alarid, 122 M.S.P.R. 600, ¶ 14; see
Whitmore v. Department of Labor , 680 F.3d 1353, 1367-70 (Fed. Cir. 2012).
Looking at the first two Carr factors, we find that the agency has presented
a strong basis for its decision to detail the appellant, and there is absolutely no
evidence of a motive to retaliate against the appellant. TL stated that he detailed
the appellant in order to protect him, as NM, his first-line supervisor, was under
investigation due to serious allegations made by the appellant. HR (testimony of
TL). In detailing the appellant, TL intentionally removed him from NM’s chain
of command, which limited the amount of influence NM would have over
decisions concerning the appellant at work. Id. Additionally, the appellant
testified that there was no change in his duties while he was detailed, and he still
sat in the same area he had prior to the detail; thus, this detail did not
substantially change the appellant’s daily work life absent adding an extra layer
of protection for him against NM’s influence. HR (testimony of appellant).
Therefore, we find the basis for the detail to be extremely sound and further find
that it demonstrates that TL’s motivation was not to retaliate against the appellant
but to protect the appellant from retaliation. Notably, in his testimony, the
appellant admitted that he had “no problem” with the detail but felt that the detail
did not go far enough to remove him from NM’s influence. HR (testimony of
appellant). Thus, while the appellant may argue that the agency should have done18
more to protect him, the appellant does not argue that the detail itself was
motivated by retaliation.14 Id.
Regarding the third Carr factor, the agency does not address whether it has
detailed other employees who did not make a protected disclosure under 5 U.S.C.
§ 2302(b)(8) when their supervisor was under investigation. While the agency
does have an affirmative burden to produce evidence concerning each and every
Carr factor, our reviewing court has held that “the absence of any evidence
relating to Carr factor three can effectively remove that factor from the analysis”
but that the failure to produce such evidence it if exists “may be at the agency’s
peril,” and “may well cause the agency to fail to prove its case overall.”
Whitmore, 680 F.3d at 1374. Moreover, because it is the agency’s burden of
proof, when the agency fails to introduce relevant comparator evidence, the third
Carr factor cannot weigh in favor of the agency. Smith v. General Services
Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency , 908 F.3d 1291, 1299 (Fed. Cir. 2018). Accordingly, we find
that because the agency failed to introduce comparator evidence, the third Carr
factor cannot weigh in the agency’s favor. Nevertheless, we find that evidence
presented by the agency for the first and second Carr factors is more than
sufficient to establish the agency’s clear and convincing burden.
Because the agency proved by clear and convincing evidence it would have
taken its action absent whistleblowing, we agree with the administrative judge’s
conclusion that the appellant is not entitled to corrective action. ID at 13.
14 To the extent that the appellant alleges that the agency’s failure to further remove the
appellant from NM was a personnel action, there is no evidence that this allegation was
raised before OSC, and thus, the Board may not consider it here for the first time.
Boechler, 109 M.S.P.R. 638, ¶ 6 (affirming that the Board may only consider charges of
whistleblowing that the appellant raised before OSC); W-1 IAF, Tab 1 at 7, 9-22. 19
NOTICE OF APPEAL RIGHTS15
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:
15 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.20
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 any21
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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’s22
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.16 The court of appeals must 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.
16 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 23
Contact information for the courts of appeals can be 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.24 | Lind_Jonathan_J_DE-1221-19-0312-W-2_Final_Order.pdf | 2024-08-08 | JONATHAN J. LIND v. DEPARTMENT OF THE INTERIOR, MSPB Docket No. DE-1221-19-0312-W-2, August 8, 2024 | DE-1221-19-0312-W-2 | NP |
746 | https://www.mspb.gov/decisions/nonprecedential/Findlay_Patrick_G_PH-1221-19-0145-A-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICK G. FINDLAY,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-1221-19-0145-A-1
DATE: August 8, 2024
THIS ORDER IS NONPRECEDENTIAL1
Patrick G. Findlay , Bel Air, Maryland, pro se.
Jeffrey P. Meineke , 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.
REMAND ORDER
The appellant has filed a petition for review of the initial decision that
awarded him attorney fees and costs in the amount of $284,508.79. 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,
AFFIRM the portion of the addendum initial decision ordering the agency to
make payments in the amount of $262,950.00 for attorney’s fees, $19,487.54 for
litigation costs and expenses, and $2,071.25 for deposition costs, VACATE the
portion of the addendum initial decision denying the appellant’s request for
reimbursement for expert witness or expert consulting fees in the amount of
$47,918.75, and REMAND the case to the regional office for further adjudication
in accordance with this Remand Order.
BACKGROUND
The appellant filed an individual right of action (IRA) appeal alleging that
the agency took a number of actions against him in retaliation for his protected
disclosures. Findlay v. Department of the Army , MSPB Docket No. PH-1221-19-
0145-W-1, Initial Appeal File (IAF), Tab 1. The appeal was dismissed and
subsequently refiled, see Findlay v. Department of the Army , MSPB Docket
No. PH-1221-19-0145-W-2, Appeal File (W-2 AF), Tab 1, and the agency moved
to stay proceedings, notifying the administrative judge that the parties had agreed
in principle to settlement terms and were in the process of finalizing a settlement
agreement, W-2 AF, Tab 10 at 4.
On April 13, 2020, the parties filed an executed global settlement
agreement resolving the Board IRA appeal, as well as the appellant’s appeals
pending before the Equal Employment Opportunity Commission (EEOC) and any
other fora where appeals were pending or could be filed. W-2 AF, Tab 14.
Pursuant to the agreement, the appellant agreed to withdraw his Board appeal and
all other pending complaints in exchange for the agency’s agreement to pay the
appellant compensatory damages in the amount of $320,000, as well as the
appellant’s reasonable attorneys’ fees and costs, “with the total amount of such
fees to be determined by the [Board] in connection with” the appellant’s Board
appeal and two pending EEOC complaints. Id. at 4-6. The parties also requested2
that the settlement agreement be placed into the record in the IRA appeal for
enforcement purposes and agreed that the administrative judge would retain
enforcement jurisdiction over the appeal. Id. at 9. The administrative judge
consequently dismissed the appeal as settled. W-2 AF, Tab 15.
The appellant subsequently filed the instant motion for attorney fees and
costs and a supplemental motion for fees and costs. Findlay v. Department of the
Army, MSPB Docket No. PH-1221-19-0145-A-1, Attorney Fee File (AFF),
Tabs 1, 4. The motion sought payment of $262,950 in attorney fees for
appellant’s counsel, as well as reimbursement costs for attorneys’ fees paid to
appellant’s former counsel, deposition costs, travel costs, and expert consultant
fees paid to C.H. and P.P. AFF, Tab 1 at 4-5, Tab 4 at 4-5. The agency filed a
response in opposition to the fee petition, stating that, while it did not generally
object to fees sought by the appellant’s current and former counsel, and agreed
that the deposition and attorney travel costs appeared reasonable, it did object to
the request for reimbursement for fees paid to the purported expert witnesses,
asserting that it was unclear what role either played in assisting the appellant with
his appeal and that the appellant had not identified any legal authority that
obligated the agency to reimburse him for their fees. AFF, Tab 6 at 1. After an
unsuccessful effort to settle the fees issue, IAF, Tabs 7-10, the parties filed
additional pleadings addressing the issue of reimbursement for C.H. and P.P.,
AFF, Tabs 12-13.
On December 3, 2020, the agency submitted a revised response in which it
acknowledged that it had already paid the appellant the $320,000 in compensatory
damages pursuant to the negotiated settlement agreement, and that it agreed to
reimburse the appellant for fees paid to his former counsel, travel costs,
deposition costs, and miscellaneous costs. AFF, Tab 17 at 4-5; W-2 AF, Tab 14
at 4-6. However, the agency maintained its previous objection to the payment of
purported expert witness fees to C.H. and P.P. Id. at 6. On December 22, 2020,
the administrative judge issued an order awarding attorneys’ fees in the amount of3
$295,000 for appellant’s counsel, $2,071.25 in deposition costs, and $19,487.54
in reimbursement for fees the appellant paid to his previous attorneys, and for
travel costs and miscellaneous costs. AFF, Tab 19 at 2-3. The order noted that
the remaining disputed issue—the appellant’s entitlement to reimbursement for
work performed by C.H. and P.P.—would be addressed in an addendum initial
decision. Id. at 3.
In an addendum initial decision, the administrative judge incorporated his
findings from the previous order, granting in part the appellant’s fee motion,
awarding the appellant $262,9502 in attorneys’ fees, $2,071.25 in deposition
costs, and $19,487.54 in reimbursement for litigation costs and expenses. AFF,
Tab 22, Addendum Initial Decision (AID) at 4-5, 7. However, the administrative
judge denied the appellant’s request for reimbursement for purported expert
witness fees paid to C.H. and P.P. AID at 8-10.
The appellant timely filed a petition for review challenging the
administrative judge’s finding in the addendum initial decision denying his
request for reimbursement of fees paid to C.H and P.P. Petition for Review
(PFR) File, Tab 1. The agency filed an untimely response in opposition to the
petition for review, as well as a motion to accept the filing as timely, and the
appellant has filed an objection to the agency’s motion. PFR File, Tabs 3, 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
On review, the appellant argues that the administrative judge improperly
mischaracterized C.H and P.P. as “expert consultants” instead of “expert
witnesses” and erred by disallowing his request for reimbursement for fees he
paid to them. PFR File, Tab 1 at 4-8, 13-15, 17-20, 23-24. He also alleges that
the administrative judge was biased or showed favoritism and challenges his
rulings on prehearing and other discovery-related motions in the settled IRA
2 In doing so, the administrative judge corrected a typographical error in the prior order
incorrectly identifying the fee award amount as $295,000 instead of $262,950. AID
at 5, 7 n.3. 4
appeal. Id. at 9-13. Additionally, he asserts that the administrative judge
“chastised” him during the proceedings below and suggests that he felt pressured
by the administrative judge into accepting the terms of the settlement agreement.
Id. at 12-13. Finally, the appellant alleges that the counsel provided by his
attorney during the proceedings was inadequate or ineffective. Id. at 16-22.
The agency’s response to the petition for review was untimely filed without good
cause shown for the delay.
In a motion to accept its response as timely, the agency representative
asserts that on May 7, 2021, he witnessed several emails arrive in his email inbox
several hours after they were sent, and that over the course of the next several
days he began to discover other emails that he believed arrived in his inbox well
after they were originally sent, including the email notification for the Petition for
Review acknowledgement letter issued by the Board on March 29, 2021. PFR
File, Tab 2, Tab 5 at 5. He avers that by that time, the April 20, 2021 deadline to
respond to the petition for review or to request an extension of time to respond
had long passed, but he nevertheless filed a response “as quickly as he could”
thereafter, on May 12, 2021. PFR File, Tab 3, Tab 5 at 5. The agency
representative further states that on March 29, 2021, his eyes were “glued” to his
email inbox because he was awaiting another important email message, and so it
was unlikely that he missed the Board’s acknowledgement letter, and further
notes that another attorney in the agency complained about computer problems
that day. PFR File, Tab 5 at 5. Although he acknowledges that it is possible that
he “merely overlooked or ignored the email in question,” he nevertheless suggests
that it may have been a technical error that caused him to miss his response filing
deadline, and requests that his response be accepted as timely filed. Id.
The Board’s regulations provide that e-filers are responsible for ensuring
that email from mspb.gov is not blocked by filters. 5 C.F.R. § 1201.14(j)(2)
(2021). Further, e-filers are responsible for monitoring case activity at e-Appeal
to ensure that they have received all case-related documents. 5 C.F.R.5
§ 1201.14(j)(3). The agency representative was a registered e-filer and thus was
responsible for monitoring filings and issuances in this case. Accordingly, we
find the agency’s response to the petition for review was untimely filed without
good cause shown for the delay in filing, and we deny the motion to waive the
time limit and have not considered the response to the petition for review.
We remand the appeal for the administrative judge to make a finding regarding
whether the claimed expert witness costs were reasonable.
We turn now to consider the administrative judge’s findings awarding the
appellant requested fees and costs. In the addendum initial decision, the
administrative judge first determined that, because the requests for $262,950 in
fees for the appellant’s then-attorney, $2,071.25 in deposition costs, and
$19,487.54 in reimbursement for prior attorneys’ fees and litigations costs and
expenses were unopposed, the agency was ordered to pay those costs. AID at 8,
10. We find no error in the administrative judge’s finding in this regard and
affirm that portion of the addendum initial decision.
However, the administrative judge denied the appellant’s request for
reimbursement for fees paid to C.H. and P.P., concluding that he was not entitled
to recovery of those costs. AID at 8-10. Specifically, the administrative judge
concluded that, although the settlement agreement did not identify the appellant
as a prevailing party for the purpose of his entitlement to fees and costs, because
the agency had not challenged the administrative judge’s characterization of the
appellant as a prevailing party in the initial decision dismissing the appeal as
settled, he would analyze the fee award request in light of 5 U.S.C. § 1221(g),
with the appellant considered a prevailing party. AID at 8-9; W-2 AF, Tab 15
at 2 n.2. He concluded that, while section 1221(g)(1)(A)(ii) permits payment of
compensatory damages for expert witness fees, the statute is silent regarding
reimbursement of costs for “non-attorney consultants,” and both the settlement
agreement and the motion for attorney fees identified C.H. and P.P. as “expert
consultants” and not expert witnesses who would be called upon to testify at the6
hearing. AID at 9. He further noted that neither P.P. or C.H. were listed as
potential witnesses in the appellant’s discovery responses, lending further
credence to the conclusion that they were consultants and not expert witnesses.
AID at 9. Finally, he determined that, even if the definition of “expert witness”
in section 1221(g)(1)(A)(ii) was expanded to include fees paid to consultants
serving in a nontestimonial capacity, that section identifies such costs as
“compensatory damages,” and the executed settlement agreement specifically
addressed the appellant’s entitlement to compensatory damages, agreeing that he
would be paid $320,00 to resolve such claims, so the appellant was not entitled to
any additional compensation for this type of damages. AID at 9.
Unlike cases where a party asserts that it is entitled to an award of attorney
fees under the relevant fee statute, the parties in this case agreed to an award of
attorney fees and costs as part of their negotiated settlement agreement. W-2 AF,
Tab 14 at 6-7; see AFF, Tab 4 at 4-5; Tab 17 at 4-5. By the terms of the
settlement agreement, the agency agreed “[t]o pay Appellant’s reasonable
attorneys’ fees and costs, with the total amount of such fees to be determined by
the [] Board” in connection with the appellant’s IRA appeal and his two EEO
complaints. W-2 AF, Tab 14 at 6. The agreement further stated that the fee
award could include reimbursement for fees paid to the appellant’s former
attorneys, identified the agreed-upon billing rate for the appellant’s then-attorney
for the purpose of calculating the fees, and identified the expected billing rates
for the claimed experts in the event the Board ordered the payment of such fees.
Id. Nothing in the language of the agreement identified that fees or costs should
be denied because they were not among the types of fees identified in
section 1221(g)(1)(A). See Martin v. Department of Justice , 99 M.S.P.R. 59, ¶ 20
(2005) (recognizing that the centerpiece of the Board’s analysis in construing
terms of a written settlement agreement is the plain language of the agreement),
aff’d, 188 F. App’x 994 (Fed. Cir. 2006). Under these circumstances, it was
improper for the administrative judge to consider the appellant’s motion for7
attorneys’ fees pursuant to section 1221(g).3 See, e.g., Greco v. Department of
the Army, 852 F.2d 558, 561 (Fed. Cir. 1988) (concluding that, because the
settlement agreement provided for the payment of attorney fees, it was
unnecessary to determine whether the employee was entitled to fees under
section 7701(g)(1); Sherrell v. Department of the Navy , 92 M.S.P.R. 15, ¶¶ 2, 4
(2002) (finding that an appellant did not have to satisfy the “prevailing party” or
“interest of justice” standards of section 7701(g)(1) when the entitlement to fees
was based on a settlement agreement in which the agency agreed to pay
“reasonable attorney fees and costs”).
Finally, we note that in Delorme v. Department of the Interior ,
124 M.S.P.R. 123, ¶¶ 9-16 (2017), the Board overturned prior precedent and
found that the source of its authority to enforce settlement agreements is
independent of the Board’s jurisdiction over the underlying matter appealed. The
Board found that conclusion to be consistent with not only the law, but also
public policy considerations. Id., ¶¶ 17-21. Thus, the Board is not precluded
from awarding reasonable costs associated with the appellant’s claims, pursuant
to the plain terms of the parties’ settlement agreement. Consequently, the
administrative judge in this case must determine what costs were reasonable
under the terms of the settlement agreement. Accordingly, we find that remand is
necessary for the administrative judge to give full effect to the settlement
agreement by determining whether the sole remaining costs in dispute, the
appellant’s request for reimbursement of expert witness or expert consultant fees
3 We also note that, although the administrative judge analyzed the appellant’s
“prevailing party” status in light of 5 U.S.C. § 1221(g), that provision is also
inapplicable here because in order to receive attorneys’ fees and costs under that
section, the Board must have “order[ed] corrective action under [the] section”
authorizing IRA appeals, which did not occur in this case because the parties agreed to
settle the appeal. AID at 8-10; see Auker v. Department of Defense , 86 M.S.P.R. 468,
¶¶ 4-14 (2000) (finding that the administrative judge erred by considering whether a fee
award was warranted under section 1221(g) when the appellant’s IRA appeal was
dismissed as settled, concluding instead that the fee award should have been considered
under the general fee statute, 5 U.S.C. § 7701(g)(1), which does not require a finding
that the Board ordered corrective action).8
amounting to $20,562.50 for C.H. and $27,356.25 for P.P., were reasonable. See
Jones v. Department of Health and Human Services , 56 M.S.P.R. 311, 314 -15
(1993) (remanding the appeal to the regional office for a determination of the
reasonable amount of attorneys’ fees when the settlement agreement indicated
that the appellant was entitled to a reasonable amount of attorney fees in an
amount “to be determined by the Board”); see also Sowa v. Department of
Veterans Affairs , 96 M.S.P.R. 408, ¶ 11 (2004) (recognizing that an
administrative judge is in the best position to evaluate attorney fee requests).
The appellant’s remaining arguments are unavailing.
Regarding the appellant’s assertion that his attorney was inadequate or
ineffective, it is well settled that the presence of inadequate counsel does not
constitute a ground for reversal since the appellant is held responsible for the
action or inaction of his counsel. Sparks v. Department of the Interior ,
62 M.S.P.R. 369, 371 (1994); Sofio v. Internal Revenue Service , 7 M.S.P.R. 667,
670 (1981). Accordingly, even if true, the appellant’s assertion provides no basis
to disturb the addendum initial decision.
With respect to the appellant’s allegations of bias or favoritism in relation
to the administrative judge’s rulings on prehearing motions and other
discovery-related matters in the IRA appeal, those allegations relate to the settled
IRA appeal and not the instant addendum fee appeal, so we need not consider
them. PFR File, Tab 1 at 9-13. Nevertheless, even if we were to consider the
appellant’s claims, they would not compel a different result here. In making a
claim of bias or prejudice against an administrative judge, a party must overcome
the presumption of honesty and integrity that accompanies all administrative
adjudicators. Washington v. Department of the Interior , 81 M.S.P.R. 101, ¶ 7
(1999). 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.9
Cir. 2002) (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). The
appellant’s bare assertions here do not meet this rigorous standard.4 See Williams
v. Equal Employment Opportunity Commission , 64 M.S.P.R. 436, 438-39 (1994)
(concluding that an appellant’s disagreement with an administrative judge’s
discovery ruling is insufficient to warrant a finding of bias).
ORDER
For the reasons discussed above, we AFFIRM the portion of the addendum
initial decision ordering the agency to make payments in the amounts of
$262,950.00 for attorney’s fees, $19,487.54 for litigation costs and expenses, and
$2,071.25 for deposition costs, VACATE the portion of the addendum initial
decision denying the appellant’s request for reimbursement in the amount of
$47,918.75 for claimed expert witness or expert consulting fees, and 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.
4 To the extent the appellant suggests on review that the settlement agreement is invalid
or alleges that he felt pressured to accept the terms of the agreement, these arguments
challenging the validity of the settlement agreement must be raised in a petition for
review of the initial decision that dismissed the appeal as settled, so we have not
considered them here. PFR File, Tab 1 at 12-13; see Linares-Rosado v. U.S. Postal
Service, 112 M.S.P.R. 599, ¶ 6 (2009).10 | Findlay_Patrick_G_PH-1221-19-0145-A-1_Remand_Order.pdf | 2024-08-08 | PATRICK G. FINDLAY v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-1221-19-0145-A-1, August 8, 2024 | PH-1221-19-0145-A-1 | NP |
747 | https://www.mspb.gov/decisions/nonprecedential/Chen_MichaelPH-0752-20-0271-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DR. MICHAEL M. CHEN,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
PH-0752-20-0271-I-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael M. Chen , Lancaster, California, pro se.
Stephen W. Artymowicz , Esquire, Aberdeen Proving Ground, 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. On petition for review, the appellant disagrees with
virtually all of the administrative judge’s findings of fact and challenges her
credibility determinations. 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 review, the appellant makes numerous claims that the initial decision
contains erroneous findings and conclusions of material fact. Petition for Review
(PFR) File, Tab 1 at 6-19. The appellant’s mere disagreement with the
administrative judge’s well-reasoned findings does not explain why those
findings are incorrect or otherwise establish error. Yang v. U.S. Postal Service ,
115 M.S.P.R. 112, ¶ 12 (2010) (finding that arguments that constitute mere
disagreement with the initial decision do not provide a basis to grant the petition
for review); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (finding that there is no reason to disturb the
administrative judge’s conclusions when the initial decision considered the
evidence as a whole, drew appropriate inferences, and made reasoned
conclusions).
The appellant also asserts on review that the administrative judge did not
fairly consider his denials that any of the three incidents on which the agency
based his removal occurred, but instead simply believed the complaining
witness’s version of the events. PFR File, Tab 1 at 6-19. Because no one2
witnessed any of the incidents, the administrative judge carefully examined the
credibility of the complaining witness and that of the appellant, and reached the
conclusion that the complaining witness was more credible. In resolving the
issues of credibility, the administrative judge applied the pertinent factors set
forth in Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987). Initial
Appeal File (IAF), Tab 21, Initial Decision at 7-15. It is well established that the
Board must defer to an administrative judge’s credibility determinations when
they are based, either explicitly or implicitly, on observing the demeanor of
witnesses testifying at a hearing and that the Board may overturn such
determinations only when it has “sufficiently sound” reasons to do so. Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002). We have
considered the appellant’s allegations but find that they do not provide
sufficiently sound reasons to overturn the administrative judge’s well-supported
credibility determinations.
Regarding the appellant’s claim that the administrative judge was biased,
PFR File, Tab 1 at 6, the appellant’s claims of bias do not overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators, and the appellant has failed to show that 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); Oliver v. Department of Transportation , 1 M.S.P.R. 382, 386 (1980).
The appellant also claims on review that he was the victim of “manifest racial
discrimination.” PFR File, Tab 1 at 28. The appellant did not raise unlawful
discrimination below, the administrative judge did not include such a claim in the
list of issues presented by the appeal, and, despite being afforded the opportunity
to do so, the appellant did not object to that exclusion. Thus, he is precluded
from raising the matter on review. Miles v. Department of the Navy ,
102 M.S.P.R. 316, ¶ 18 (2006); IAF, Tab 16.3
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.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Chen_MichaelPH-0752-20-0271-I-1_Final_Order.pdf | 2024-08-08 | DR. MICHAEL M. CHEN v. DEPARTMENT OF THE ARMY, MSPB Docket No. PH-0752-20-0271-I-1, August 8, 2024 | PH-0752-20-0271-I-1 | NP |
748 | https://www.mspb.gov/decisions/nonprecedential/Jenkins_Jason_D_DA-0752-21-0314-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JASON D. JENKINS SR.,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
DA-0752-21-0314-I-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Daniel J. Gamino , Esquire, Oklahoma City, Oklahoma, for the appellant.
Jermiah Phelix , Esquire, Tinker AFB, Oklahoma, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
sustained his removal. On petition for review, he challenges the administrative
judge’s credibility findings, argues that she failed to consider all the evidence,
and disputes her determination that the agency proved its charge. The appellant
also reasserts his affirmative defenses and re-argues that the deciding official
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
either did not consider or improperly considered certain penalty factors.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2The appellant asserts that the administrative judge took 18 months to issue
an initial decision after the hearing, and therefore that the delay was
unreasonable. Petition for Review (PFR) File, Tab 1 at 25-26. He also claims
that the administrative judge issued her initial decision the day his
U.S. Congressman responded to his inquiry concerning her delay. Id. at 25-26,
44. He does not otherwise allege or present evidence that the delay prejudiced his
substantive rights, such as, for example, that it affected the administrative judge’s
ability to recall the hearing testimony. An administrative judge’s delay in issuing
a ruling, such as an initial decision, does not, without more, constitute reversible
error. Keefer v. Department of Agriculture , 92 M.S.P.R. 476, ¶ 6 (2002); Fouquet
v. Department of Agriculture , 82 M.S.P.R. 548, ¶¶ 7-9 (1999) (finding that the
appellant was not prejudiced by administrative judge’s 1-year delay in issuing an
initial decision when the record did not support the appellant’s claim that the
administrative judge could not recall the details of testimony so as to make2
accurate credibility determinations); Paclibare v. Veterans Administration ,
22 M.S.P.R. 320, 323 (1984) (finding no prejudice to the appellant’s substantive
rights from the issuance of an initial decision 8 months after the hearing), aff’d,
785 F.2d 322 (Fed. Cir. 1985) (Table). Here, the hearing testimony was
memorialized in a transcript, which the administrative judge cited throughout her
29-page initial decision to reference the testimony of multiple witnesses and
make specific findings as to their demeanor and credibility. ID at 6-15, 18-24,
26-28 (29 pages excluding notice of the parties’ appeal rights). The initial
decision was thorough and well-reasoned. Thus, the appellant’s allegations,
without more, do not establish a basis for reversing the initial decision.
Accordingly, we affirm the initial decision.2
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing 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 With his petition for review, the appellant has submitted a copy of his performance
appraisal for the period of April 1, 2019, through June 1, 2020, and correspondence
from his U.S. Congressman. PFR File, Tab 1 at 34-44. We have not considered this
evidence as it is neither new nor material to the dispositive issues in this appeal. Russo
v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, 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 | Jenkins_Jason_D_DA-0752-21-0314-I-1_Final_Order.pdf | 2024-08-08 | JASON D. JENKINS SR. v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. DA-0752-21-0314-I-1, August 8, 2024 | DA-0752-21-0314-I-1 | NP |
749 | https://www.mspb.gov/decisions/nonprecedential/Lemaitre_Natasha_S_NY-752S-20-0250-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NATASHA S. LEMAITRE,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
NY-752S-20-0250-I-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Natasha S. LeMaitre , Brooklyn, New York, pro se.
Michelle L. Perry , 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 her 4-day suspension 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 and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
The agency suspended the appellant, a Management and Program Analyst,
for 4 days based on a charge of failure to follow supervisory instructions. Initial
Appeal File (IAF), Tab 1 at 37-40. The appellant filed this appeal of her
suspension to the Board, identifying herself as preference eligible and alleging
reprisal. Id. at 1-3, 5. She requested a hearing on the matter.2 Id. at 2.
The administrative judge informed the appellant that the Board generally
lacks chapter 75 jurisdiction over appeals involving suspensions of 14 days or
less. IAF, Tab 6. She explained, however, that the Board might have jurisdiction
2 The appellant filed a prior appeal challenging her demotion from the position of
Management and Program Analyst, GS-12, to the GS-11 level, which the administrative
judge dismissed as settled. LeMaitre v. Department of Homeland Security ,
MSPB Docket No. NY-0752-20-0237-I-1, Initial Decision at 1-2 (Apr. 26, 2021). The
settlement agreement did not resolve or preclude the instant appeal. LeMaitre v.
Department of Homeland Security , MSPB Docket No. NY -0752-20-0237-I-1, Initial
Appeal File, Tab 35. Further, neither party petitioned for review from the decision
dismissing that appeal, and it is now the final decision of the Board. See 5 C.F.R.
§ 1201.113 (reflecting that an initial decision generally becomes the Board’s final
decision 35 days after it is issued absent a petition for review). The appellant’s prior
appeal is not relevant to the issues raised in the instant appeal.2
if the appellant was raising her suspension in conjunction with a Uniformed
Services Employment and Reemployment Rights Act of 1994 (USERRA) appeal
or an individual right of action (IRA) appeal, and she ordered the appellant to file
evidence and argument regarding jurisdiction. Id. In response to this order, the
appellant repeated that the agency suspended her in reprisal for unidentified
activities, possibly including filing an equal employment opportunity (EEO) or
Office of Inspector General (OIG) complaint. IAF, Tab 1 at 5, Tab 9 at 3.
She stated that she was appealing the reprisal, not her suspension or “the number
of days [she] was suspended.” IAF, Tab 9 at 3. Without holding the appellant’s
requested hearing, the administrative judge issued an initial decision dismissing
the appeal for lack of jurisdiction, finding that it did not fall within any
recognized exception to the general rule that the Board lacks jurisdiction over a
4-day suspension. IAF, Tab 10, Initial Decision (ID) at 1, 3-4.
The appellant has filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The agency has filed a response to the
appellant’s petition. PFR File, Tab 3.3
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly determined that the appellant failed to make a
nonfrivolous allegation of chapter 75 or USERRA jurisdiction.
The Board’s jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation. Maddox v. Merit Systems
Protection Board , 759 F.2d 9, 10 (Fed. Cir. 1985). A suspension of more than
3 The appellant has also filed a motion for leave to file an additional pleading alleging
that after the record closed on review the agency “purposely entered” into her electronic
Official Personnel File two Standard Forms 50 (SF-50s) reflecting her suspension.
PFR File, Tab 4 at 4. However, this allegation does not change the outcome in this
case. Once the record on review closes, the Board will not accept additional evidence
or argument absent a showing that it was new, material, and not readily available before
the record closed. 5 C.F.R. § 1201.114(k). The SF-50s are not material evidence
because they would not warrant an outcome different from that of the initial decision.
See Le v. U.S. Postal Service , 114 M.S.P.R. 430, ¶ 6 (2010). Specifically, they do not
establish Board jurisdiction over the appellant’s 4-day suspension. We, therefore, deny
the appellant’s motion.3
14 days is within the Board’s chapter 75 jurisdiction, but a suspension of 14 days
or less is not an appealable adverse action. 5 U.S.C. §§ 7512(2), 7513(d);
Lefavor v. Department of the Navy , 115 M.S.P.R. 120, ¶ 5 (2010); McClure v.
U.S. Postal Service , 83 M.S.P.R. 605, ¶¶ 4, 6 (1999). The appellant does not
claim that the administrative judge erred in determining that her 4-day suspension
was not an appealable adverse action under chapter 75. PFR File, Tab 1 at 4; ID
at 3. She also does not dispute the administrative judge’s finding that she did not
allege that her suspension was due to her uniformed service, and thus she is not
raising a claim under USERRA. ID at 2-3; PFR File, Tab 1 at 4-5.
Accordingly, we discern no basis to disrupt these findings.
For the first time on review, the appellant raises a claim that the agency
wrote false statements on her performance appraisal and that her supervisor
signed it for her without her knowledge.4 PFR File, Tab 1 at 5. The Board does
not have authority to adjudicate a performance evaluation “unaccompanied by an
otherwise appealable adverse action.” See 5 U.S.C. § 7512; Manley v.
Department of the Air Force , 91 F.3d 117, 119 (Fed. Cir. 1996); see 5 C.F.R.
§ 1201.3(a) (providing examples of matters within the Board’s appellant
jurisdiction). Thus, the Board lacks jurisdiction over this claim.
The administrative judge properly found that the Board lacks jurisdiction over the
matter as an IRA appeal.
The appellant reasserts on review that her appeal is “due to the reprisal and
not necessarily about the suspension or length of time [she] was suspended.”
PFR File, Tab 1 at 4. She reiterates her claim that her suspension was in reprisal
for making an OIG complaint against her leadership. Id. at 4-5; IAF, Tab 1 at 3,
5. The administrative judge found that the Board lacks jurisdiction as an IRA
4 We have considered the appellant’s new argument to the extent it concerns the issue of
the Board’s jurisdiction because jurisdiction can be raised at any time. See Pirkkala v.
Department of Justice , 123 M.S.P.R. 288, ¶ 5 (2016) (considering evidence submitted
for the first time on review because it was relevant to the Board’s jurisdiction).4
appeal because the appellant failed to seek corrective action from OSC regarding
any reprisal claims. ID at 3-4. We agree.
To 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 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). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5 (2016).
Here, the appellant asserts that the agency issued the suspension decision a few
days after she filed an OIG complaint. PFR File, Tab 1 at 4. However, she has
not asserted any error in the administrative judge’s factual finding that she did
not seek correction with OSC. ID at 3-4; see Salerno, 123 M.S.P.R. 230, ¶ 5.
This finding is supported by the appellant’s initial appeal form, on which she
answered “no” to the question of whether she filed a whistleblower reprisal
complaint with OSC. IAF, Tab 1 at 4. Thus, we discern no basis to disrupt the
administrative judge’s finding that, in essence, the Board lacks IRA jurisdiction
over this appeal because the appellant failed to show she exhausted her
administrative remedies as required. ID at 3-4.
The appellant also reasserts claims of retaliation for filing internal
complaints of harassment and EEO complaints with the agency. PFR File, Tab 1
at 4. She also appears to claim reprisal for grievance activity. Id. However, the
Board does not have jurisdiction over her claims of harmful error, prohibited
personnel practices, or discrimination absent an otherwise appealable action.
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, prohibited personnel practices, and discrimination);
Wren v. Department of the Army , 2 M.S.P.R. 1, 2 (1980) (explaining that5
prohibited personnel practices under 5 U.S.C. § 2302(b) are not an independent
source of Board jurisdiction), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).
The Board lacks jurisdiction over the agency’s record keeping related to the
appellant’s 4-day suspension.
For the first time on review, the appellant argues that the agency
fraudulently processed her suspension and alleges other errors related to her
electronic Official Personnel File (eOPF). PFR File, Tab 1 at 4-5. In particular,
she alleges that the agency did not add the suspension action to her eOPF but
“instructed [her] to enter the suspension days on to [her] timecard.” Id.
She further asserts that her eOPF shows that the agency gave her an award;
however, she contends that she did not receive it, asserting “[she] mentioned to
[an agency official] that the entire region was given awards except for [her] and
[she] was going to add that to [her] EEO complaint.” Id. at 5.
Because the Board lacks jurisdiction over the appellant’s 4-day suspension
or the denial of an award, it also lacks jurisdiction over the appellant’s claims
regarding her eOPF. See Young v. U.S. Postal Service , 113 M.S.P.R. 609, ¶ 40
(2010) (finding the Board does not have jurisdiction to adjudicate Privacy Act
related claims, unless the Act is implicated in matters over which the Board has
jurisdiction); Clark v. Department of the Air Force , 111 M.S.P.R. 477, ¶ 9 (2009)
(finding that the Board generally does not have jurisdiction over an appeal of a
denial of a performance related award, but recognizing an exception to this rule,
i.e., that it has authority to determine an appellant’s entitlement to such an award
as part of status quo ante relief); see also 5 U.S.C. § 552a(d)(2) (containing the
provision in the Privacy Act requiring agencies to consider an individual’s
request to correct a Privacy Act record). The documents the appellant provides
for the first time on review in support of these claims, specifically, the screen
captures of her eOPF and emails she exchanged with agency officials regarding
how to code her suspension on her timecard, are immaterial to the issue of6
whether the Board has jurisdiction over this appeal.5 Id. at 6-11. Thus, the
appellant new evidence and arguments provide no basis to disturb the initial
decision. See Luna v. Office of Personnel Management , 89 M.S.P.R. 465, ¶ 7
(2001) (declining to grant review based on arguments and documentary
submissions that did not address the dispositive jurisdictional issue in the appeal).
NOTICE OF APPEAL RIGHTS6
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
5 Some of these documents the appellant included with her petition for review are in the
record below and thus provide no basis to disturb the initial decision. PFR File, Tab 1
at 12-55; IAF Tab 1 at 7-35, 42-54; see Brough v. Department of Commerce ,
119 M.S.P.R. 118, ¶ 4 (2013) (observing that the Board will grant a petition for review
based on new and material evidence under certain circumstances, but that evidence that
is already a part of the record is not new).
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you8
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to: 9
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Lemaitre_Natasha_S_NY-752S-20-0250-I-1_Final_Order.pdf | 2024-08-08 | NATASHA S. LEMAITRE v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. NY-752S-20-0250-I-1, August 8, 2024 | NY-752S-20-0250-I-1 | NP |
750 | https://www.mspb.gov/decisions/nonprecedential/Mallik_Abe_-_Arjun_V_DC-0752-22-0382-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ABE - ARJUN V. MALLIK,
Appellant,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES,
Agency.DOCKET NUMBER
DC-0752-22-0382-I-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Bruce I. Afran , Esquire, Princeton, New Jersey, for the appellant.
Susan Andorfer and Benjamin Ries , 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 removal under 5 U.S.C. chapter 75. On petition for review, the
appellant largely argues that the administrative judge erred in relying on his
vacated conviction to sustain his removal. Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case. 3
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 4
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 5
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Mallik_Abe_-_Arjun_V_DC-0752-22-0382-I-1_Final_Order.pdf | 2024-08-08 | null | DC-0752-22-0382-I-1 | NP |
751 | https://www.mspb.gov/decisions/nonprecedential/LaPrice_Eric_G_SF-1221-23-0318-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC G. LAPRICE,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
SF-1221-23-0318-W-1
DATE: August 8, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Eric G. LaPrice , Mount Hope, West Virginia, pro se.
Kevin Sitler , Esquire, Albuquerque, New Mexico, 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 individual right of action appeal for lack of jurisdiction. On
petition for review the appellant, among other things, argues that the Board has
jurisdiction over his claim of retaliation for protected activity . Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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).
2 Although the appellant appears to claim jurisdiction on review under 5 U.S.C.
§ 2302(b)(8) by asserting that the allegedly retaliatory nonselections constituted
violations of law, rule, or regulation, Petition for Review File, Tab 1 at 14-16, he does
not allege that he suffered further retaliation for disclosing the retaliatory nonselections,
but only that he suffered retaliation for filing his 2019 grievance. Even if the appellant
had alleged retaliation for making a protected disclosure, he did not establish that he
exhausted administrative remedies for a claim under 5 U.S.C. § 2302(b)(8), as the
information he submitted below – including his OSC complaint and correspondence
with OSC – indicates that he did not raise a subsection (b)(8) claim with OSC. Initial
Appeal File, Tab 6 at 7-27; see Chambers v. Department of Homeland Security , 2022
MSPB 8, ¶ 10 (stating that the Board’s jurisdiction over an IRA appeal is limited to
those issues that have been previously raised with OSC).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | LaPrice_Eric_G_SF-1221-23-0318-W-1_Final_Order.pdf | 2024-08-08 | ERIC G. LAPRICE v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. SF-1221-23-0318-W-1, August 8, 2024 | SF-1221-23-0318-W-1 | NP |
752 | https://www.mspb.gov/decisions/nonprecedential/Andrews_DeniseDC-0752-20-0880-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DENISE ANDREWS,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DC-0752-20-0880-I-1
DATE: August 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Denise Andrews , Woodbridge, Virginia, pro se.
Brittany Dozier , Fort Gregg-Adams, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her involuntary resignation appeal for lack of jurisdiction. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The appellant resigned effective August 28, 2020, during her probationary
period from her position as a Sales Store Checker due to concerns related to
COVID-19. Initial Appeal File (IAF), Tab 5. She subsequently filed a Board
appeal alleging that she believed the agency could have offered her a telework
position or office work. IAF, Tab 1 at 3. The appellant elected to be an e-filer.
Id. at 2. After informing the appellant of the applicable legal standard for
establishing jurisdiction over a claimed involuntary resignation, and affording her
the opportunity to file evidence and/or argument demonstrating that the Board
had jurisdiction over her appeal, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction, finding that the appellant
failed to make a nonfrivolous allegation that her claim of involuntary resignation
was within the Board’s jurisdiction. IAF, Tab 3, Tab 7, Initial Decision (ID) at 5.
The initial decision specifically stated that the deadline to file a petition for
review was November 19, 2020. ID at 6.
The appellant filed her petition for review on April 14, 2021, stating that
she did not receive “a notice,” explaining that she had encountered “stress and
financial hardship,” that she had learned new facts including that it was now
mandatory for all patrons to wear masks and that the former store manager was no
longer employed there, and that she was subjected to race and age discrimination.
Petition for Review (PFR) File, Tab 1 at 3-4. The appellant also claimed that she
was “left in the dark” regarding her case, that the agency assigned her a
representative that never contacted her and she does not know what was presented
or considered in the decision, and that she only learned that the case was closed
after she emailed the Board regarding the status of her case. Id. at 3-5. The
agency did not file a response to the petition for review. 2
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). The Board will waive this time limit only upon a showing of good
cause for the delay in filing. 5 C.F.R. § 1201.114(g). To establish good cause for
the untimely filing of a petition, a party must show that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Rivera v. Social Security Administration , 111 M.S.P.R. 581, ¶ 4 (2009)
(citing Alonzo v. Department of the Air Force , 4 M.S.P.R. 180, 184 (1980)). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of her excuse and her showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
which similarly shows a causal relationship to her inability to timely file her
petition. Rivera, 111 M.S.P.R. 581, ¶ 4 (citing Moorman v. Department of the
Army, 68 M.S.P.R. 60, 62 -63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)
(Table)).
The deadline for filing a petition for review in this appeal was
November 19, 2020. ID at 6. The appellant filed her petition for review nearly
5 months later, on April 14, 2021. PFR File, Tab 1. Such a filing delay is
significant. Kroeger v. U.S. Postal Service , 112 M.S.P.R. 488, ¶ 7 (2009)
(finding that a 5-month delay in filing a petition for review is significant);
Guevara v. Department of the Navy , 112 M.S.P.R. 39, ¶ 7 (2009) (finding a delay
of over 5 months significant); Waldo v. Department of the Air Force , 91 M.S.P.R.
326, ¶ 5 (2002) (same). We recognize that the appellant is pro se, but the
assertions in her petition for review do not offer a persuasive excuse, show that3
she acted with diligence, or set forth circumstances beyond the appellant’s control
that affected her ability to comply with the filing limit.2 PFR File, Tab 1. While
the appellant claims that she was not provided “a notice” regarding her case, she
does not provide any evidence demonstrating that she did not receive the initial
decision.3 PFR File, Tab 1 at 3-5. Nevertheless, the appellant registered as an
e-filer and the initial decision was served electronically on the appellant. IAF,
Tab 1 at 2, Tab 8. Our e-filer regulations provide that, as a registered e-filer, the
appellant agreed to accept documents through electronic service and, further, that
she is required to monitor her case activity at the Repository at e-Appeal Online
to ensure that she received all case related documents. Rivera, 111 M.S.P.R. 581,
¶ 5 (2009); 5 C.F.R. § 1201.14(e)(1), (j)(3) (2020). Moreover, our regulations
provide that pleadings and Board documents served electronically on registered
e-filers are deemed received on the date of electronic submissions. Rivera,
111 M.S.P.R. 581, ¶ 5; 5 C.F.R. § 1201.14(m)(2) (2020). When a statute or
regulations “deems” something to have been done, the event is considered to have
occurred whether or not it actually did. Rivera, 111 M.S.P.R. 581, ¶ 5. Thus, we
deem the appellant to have received the initial decision on October 15, 2020, and
therefore, her petition for review was filed approximately 5 months late. IAF,
Tab 8; PFR File, Tab 1.
Furthermore, the appellant has presented no circumstances beyond her
control that would have prevented her from filing the petition for review in a
2 The appellant makes several arguments on review which address the merits of her
case, such as claiming that she was subjected to discrimination on the basis of race and
age. PFR File, Tab 1 at 4. These arguments are not relevant to the issue of timeliness,
and thus, we need not address them. Abney v. Office of Personnel Management ,
89 M.S.P.R. 305, ¶ 4 (2001), aff’d, 41 F. App’x 421 (Fed. Cir. 2002).
3 The appellant seems to believe that the agency assigned a representative to her to
represent her throughout the appeal process. PFR File, Tab 1 at 3-5. This is incorrect
—the agency designated a representative to represent the agency, not the appellant.
IAF, Tab 4. Thus to the extent that the appellant argues that she was the victim of her
representative’s error, because she did not have a representative, we need not address
this claim.4
timely fashion. On the contrary, her explanation demonstrates that she failed to
act with ordinary prudence or due diligence. The appellant was responsible for
monitoring the progress of her appeal and monitoring case activity on e-Appeal
Online to ensure that she received all case related documents. 5 C.F.R.
§ 1201.14(j)(3) (2020); see Jones v. Office of Personnel Management ,
93 M.S.P.R. 50, ¶ 5 (2002) (stating that the appellant had an obligation to
diligently monitor the progress of her appeal at all times and failure to do so
indicated a lack of due diligence). Not only did she fail to properly monitor her
case, but she also waited for several months before following up with the Board
to determine the status of her case.4 PFR File, Tab 1 at 3-5. Therefore, we do not
find that the appellant established good cause for her filing delay.
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 involuntary resignation 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
4 Although the appellant claims that she emailed the Board for a case update, she does
not provide a copy of the email. PFR File, Tab 1 at 3-4. We therefore assume that she
checked on the status of her case around the time that she filed her petition for review.
Even if she emailed the Board earlier, we still do not find that she acted with due
diligence, as she either waited several months to check on the status of her case, or she
waited for several months to file a petition for review despite knowing her case was
closed. Either set of facts does not demonstrate that the appellant acted with the level
of ordinary prudence necessary to establish good cause.
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 at6
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,7
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 115-195,8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Andrews_DeniseDC-0752-20-0880-I-1_Final_Order.pdf | 2024-08-07 | DENISE ANDREWS v. DEPARTMENT OF DEFENSE, MSPB Docket No. DC-0752-20-0880-I-1, August 7, 2024 | DC-0752-20-0880-I-1 | NP |
753 | https://www.mspb.gov/decisions/nonprecedential/Osborne_Samuel_A_AT-1221-19-0077-W-3_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL ALAN OSBORNE,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-1221-19-0077-W-3
DATE: August 7, 2024
THIS ORDER IS NONPRECEDENTIAL1
Samuel Alan Osborne , Santa Rosa Beach, Florida, pro se.
William Vincent Cochrane , Venus Owens , and Holly L. Buchanan , Eglin
Air Force Base, Florida, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in his individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
review, VACATE the initial decision, and REMAND the case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is employed by the agency as a Supervisory Range
Operations Specialist, supervising approximately 40 employees. Osborne v.
Department of the Air Force , MSPB Docket No. AT-1221-19-0077-W-1, Initial
Appeal File (IAF), Tab 13 at 11, 24, Tab 14 at 24. In the fall of 2011, he filed a
complaint with the agency’s Office of Inspector General (OIG), as well as an
internal appeal, regarding his conversion from the National Security Personnel
System (NSPS) to the General Schedule (GS). IAF, Tab 1 at 34-36; Osborne v.
Department of the Air Force , MSPB Docket No. AT-1221-19-0077-W-3, Appeal
File (W-3 AF), Tab 22, Hearing Compact Disc (HCD), Track 7 at 17:50
(testimony of the appellant). He alleged that his then-supervisor’s signature was
forged on paperwork recommending the appellant’s conversion at the GS-12 level
instead of at the GS-13 level. IAF, Tab 1 at 6, 34-36; Osborne v. Department of
the Air Force, MSPB Docket No. AT -1221-19-0077-W-2, Appeal File (W-2 AF),
Tab 12 at 7.
According to the appellant, in 2012 and 2016, he informed management
officials that the agency was improperly considering employees’ community
service in the granting of quality step increases (QSIs). IAF, Tab 34 at 16-17;
HCD, Track 7 at 26:00 (testimony of the appellant). The appellant further told
his supervisor and another agency official, including in emails in March 2017,
that “[b]y [Code of Federal Regulations (CFR)] guidance and the limits placed on
QSI’s,” his section was entitled to its own QSI because it had exceeded
“34 personnel.” IAF, Tab 1 at 53; W-2 AF, Tab 12 at 7. He pointed out that, for
purposes of awarding a QSI, his section was included in a larger group of
approximately 80 employees. IAF, Tab 1 at 53. 2
In October 2017, the appellant’s second-level supervisor reprimanded the
appellant based on two charges: discourteous conduct and deliberate
misrepresentation. Id. at 46, 51-52. The discourteous conduct charge stemmed
from an email the appellant sent to an agency contracting officer in August 2017,
stating “if you think this isn’t an issue . . . then you are invited to ride the ‘Vomit
Comet’ on our next mission and maybe it will be a greater priority.” Id. at 42, 46,
51-52. The Vomit Comet was the nickname of a boat needing repairs that
notoriously made people sick when riding it. HCD, Track 7 at 33:00 (testimony
of the appellant). The appellant’s email and reference to the Vomit Comet sought
to convince the contracting officer to expedite the documentation for funding to
refurbish the boat. IAF, Tab 1 at 42-44, 46. The appellant also copied several
other agency personnel on this email who were not originally included in his
email exchange with the contracting officer. Id. at 42-44. As for the deliberate
misrepresentation charge, the agency alleged that the appellant falsely claimed in
his March 2017 emails to his supervisor and another agency official that, under
the CFR, his section was entitled to its own QSI award. Id. at 46-47, 53.
The appellant subsequently filed a complaint with the Office of Special
Counsel (OSC), alleging that the letter of reprimand was in retaliation for
protected disclosures. Id. at 6-7. After receiving notice that OSC was closing out
its investigation, he filed the initial appeal in this case. Id. at 3.
In the meantime, around August 2018, the agency revoked the appellant’s
telework eligibility. W-3 AF, Tab 7 at 70-75. According to the agency, the
revocation was due in part to the need for the appellant to be physically present to
supervise his 40 subordinates. Id. at 70-71. Moreover, per agency policies, the
appellant’s reprimand rendered him ineligible for telework. Id. at 14, 70-71. The
appellant filed a second OSC complaint alleging that his telework eligibility was
revoked in retaliation for his disclosures and first OSC complaint. W-2 AF,
Tab 12 at 7. The appellant asserted below that the agency revoked his telework
within weeks of the date he informed his supervisors that he had filed an OSC3
complaint and planned to file a Board appeal. W-3 AF, Tab 8 at 5, 13. Following
OSC’s closure of its investigation into his second complaint, the appellant
amended his IRA appeal to include the issue of whether the revocation of his
telework eligibility was retaliatory. W-2 AF, Tab 14; W-3 AF, Tab 12 at 3-4.
After holding a hearing, the administrative judge issued an initial decision
denying the appellant’s request for corrective action. W-3 AF, Tab 24, Initial
Decision (ID) at 1-2. The administrative judge found that the Board has
jurisdiction over the appellant’s disclosure of alleged forgery of paperwork
regarding his conversion from an NSPS to a GS position and his disclosure
regarding the consideration of community service in awarding QSIs. IAF,
Tabs 22, 40; ID at 7-9. Although, as noted below, he made no reference in his
decision to the appellant’s filing of an OSC complaint, he previously found that
the Board has jurisdiction over this claim in his prehearing conference summary
order. W-3 AF, Tab 12 at 3. In that same order, he found that the Board lacked
jurisdiction over the appellant’s threat to file a Board appeal. Id. Further, the
administrative judge determined that the Board has jurisdiction over the agency’s
actions reprimanding the appellant and revoking his telework eligibility. IAF,
Tabs 22, 40; W-2 AF, Tab 14. He found, however, that the appellant failed to
nonfrivolously allege jurisdiction over his disclosure that his section was entitled
to its own QSI. IAF, Tab 22 at 1; ID at 7.
As to the merits, the administrative judge concluded that the appellant
failed to prove, by preponderant evidence, that his disclosure regarding the use of
community service in awarding QSIs was protected. ID at 13. The administrative
judge found that the appellant proved that his forgery disclosure was protected,
but that he failed to demonstrate that it was a contributing factor in his reprimand
or the telework revocation. ID at 9-12. Therefore, the administrative judge
denied the appellant’s request for corrective action. ID at 2, 14.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He disagrees with the administrative judge’s conclusion that the4
Board lacks jurisdiction over his disclosure that his section was entitled to its
own QSI. Id. at 2, 9-12. He also challenges the finding that he failed to prove by
preponderant evidence that his disclosure regarding the use of community service
in awarding QSIs was protected. Id. at 9-10. He disputes the administrative
judge’s finding that he failed to prove that his forgery disclosure was a
contributing factor in his letter of reprimand and telework revocation, id. at 6-9,
and contests the strength of the agency’s reasons for these actions, id. at 1-4. He
argues that the administrative judge improperly denied a witness, and that his
counsel below failed to file motions to compel discovery. Id. at 10. Finally, he
attaches documents he claims to be new and material and unavailable below
despite his due diligence. Id. The agency has responded to his petition for
review. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We agree with some of the administrative judge’s jurisdictional findings, but
remand for further jurisdictional determinations.
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence that he exhausted his remedies before OSC, and make
nonfrivolous allegations that: (1) he 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.
The parties do not dispute the administrative judge’s findings of
jurisdiction over two of the appellant’s disclosures as set forth above and his
activity of filing an OSC complaint. ID at 7-9; IAF, Tabs 22, 40; W-2 AF,
Tab 14; W-3 AF, Tab 12 at 3. They also do not dispute his finding of jurisdiction
over the appellant’s reprimand and the revocation of his telework eligibility, and5
that the appellant proved that his disclosure that someone had forged his
supervisor’s recommendation to transition him from the NSPS at the GS-12 level
was protected. ID at 7-9. We decline to disturb these findings.2
The administrative judge properly determined that the appellant did
not nonfrivolously allege that he reasonably believed his section was
entitled to its own QSI.
The appellant on review challenges the administrative judge’s finding that
the Board does not have jurisdiction over his disclosure concerning his section’s
entitlement to its own QSI. PFR File, Tab 1 at 2, 9-12; IAF, Tabs 22, 30; ID at 7.
We are unpersuaded.
Protected whistleblowing occurs when an appellant makes a disclosure that
he 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. 5 U.S.C. § 2302(b)
(8); 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
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 actions evidenced any violation of any law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).
Mudd, 120 M.S.P.R. 365, ¶ 5.
The appellant argues that the administrative judge failed to apply a
reasonable person standard. PFR File, Tab 1 at 9. In finding that the appellant
2 Because the administrative judge found the appellant’s forgery disclosures protected
under 5 U.S.C. § 2302(b)(8), we do not need to reach the issue of whether these
disclosures were also protected activity under 5 U.S.C. § 2302(b)(9)(C). ID at 9-10.
That provision designates as protected activity complaints to the agency’s OIG or other
agency “component responsible for internal investigation and review.” See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984 ) (holding that an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision). Regardless of the basis for determining that the forgery
disclosure was protected, the analysis of jurisdiction and the merits of the appellant’s
claim remain the same. See Corthell, 123 M.S.P.R. 417, ¶ 8. 6
failed to nonfrivolously allege that his March 2017 disclosure was protected, the
administrative judge reasoned that he was “unaware of any authority supporting
the appellant’s position and therefore view[ed] this issue as a mere policy
dispute.” ID at 7 (emphasis in original); see Webb v. Department of the Interior ,
122 M.S.P.R. 248, ¶¶ 7-9 (2015) (recognizing that general philosophical or policy
disagreements with agency decisions or actions are not protected unless they
separately constitute a protected disclosure of one of the categories of
wrongdoing listed in section 2302(b)(8)(A)).
We agree with the administrative judge that a reasonable person in the
appellant’s position would not have believed that the agency’s failure to provide
more QSIs, by itself, evidenced gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to public health and
safety. See Garrison v. Department of Defense , 101 M.S.P.R. 229, ¶ 9 (2006)
(giving a subordinate a high performance rating against the direction of a superior
is not a protected disclosure).
The appellant’s main argument on review is that he reasonably believed his
disclosure evidenced a violation of law, rule, or regulation. In his March 2017
email, the appellant referred to unidentified “CFR guidance and the limits placed
on QSI’s” to support his claim that his section was entitled to its own QSI. IAF,
Tab 1 at 53. On review, he asserts that he provided the CFR reference to the
agency. PFR File, Tab 1 at 2, 11-12. However, the appellant does not cite to any
evidence in the record supporting his contention, and does not provide the CFR
cite on review.
At the jurisdiction stage, an appellant is not required to identify the
particular statutory or regulatory provision that the agency allegedly violated
when his statements and the 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). Rather, he is only burdened with
nonfrivolously alleging that he reasonably believed that his disclosure evidenced7
such a violation. Id. The administrative judge appears to have found that the
appellant’s claim of authority supporting his section’s entitlement to its own QSI
was not reasonable.3 ID at 7.
We agree. The statutes and regulations regarding QSIs do not support the
appellant’s contention as to the reasonableness of his belief. For example,
5 U.S.C. § 5336, which allows for QSIs, provides that such increases may be
granted “in recognition of high quality performance above that ordinarily found
in the type of position concerned,” but only “[w]ithin the limit of available
appropriations.” 5 U.S.C. § 5336(a). The regulations implementing this statute
reflect that an agency may, but is not required to, award a QSI based on
outstanding performance. Id.; 5 C.F.R. §§ 531.201, .504. At most, this law
suggests that QSIs should be awarded within fiscal limits and only when earned.
The appellant argues that the reasonableness of his belief regarding his
March 2017 QSI disclosure is supported by his first-level supervisor’s response.
PFR File, Tab 9. He asserts that his first-level supervisor “believed the appellant
was correct enough . . . to see the appellant[’]s point.” PFR File, Tab 1 at 9.
Although the Board has held that the fact that other knowledgeable agency
employees and former employees shared an appellant’s concerns may lend some
support to the reasonableness of his belief, see, e.g., Turner v. Department of
Agriculture, 2023 MSPB 25, ¶ 18, the record here does not support the
appellant’s assertion that his supervisor actually shared his belief. The
appellant’s supervisor responded to the appellant’s March 2017 email that he
“agree[d] [with the appellant] on all accounts.” IAF, Tab 1 at 53. This response,
however, was based on the appellant’s inaccurate representation to his supervisor
that the agency was violating the “CFR guidance” and unidentified “limits placed
3 This is consistent with the administrative judge’s finding on the merits of the
appellant’s remaining claims. Specifically, the administrative judge found that the
agency’s reason for reprimanding the appellant for his alleged deliberate
misrepresentation in connection with the March 2017 disclosure was strong. ID
at 10-11; IAF, Tab 1 at 47. 8
on QSI’s.” Id. Under these circumstances, we do not find that the supervisor’s
response supports the reasonableness of the appellant’s belief. Because we agree
with the administrative judge that the appellant’s disclosure was not protected, we
do not reach his remaining arguments on review regarding this disclosure. PFR
File, Tab 1 at 8.
We remand the appellant’s claim of perceived protected activity
under 5 U.S.C. § 2302(b)(9)(A)(i) for further adjudication.
On review, the appellant re-raises his claim that his telework was
suspended in August 2018 as “punishment” for his statement earlier in the month
that he had filed an OSC complaint and planned to file an IRA appeal with the
Board.4 PFR File, Tab 1 at 9-10; W-3 AF, Tab 8 at 5, 13, Tab 12 at 3. As
discussed above, the administrative judge correctly found that the Board has
jurisdiction over the appellant’s claim of reprisal for filing his OSC complaint.
However, the administrative judge concluded that the threat to file an IRA appeal
with the Board is not protected activity under whistleblower reprisal statutes.
W-3 AF, Tab 12 at 3. This finding was in error.
The Board has IRA jurisdiction over a claim of reprisal for engaging in
protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), which includes
“the exercise of any appeal . . . right” in which the appellant sought to remedy
whistleblower reprisal. 5 U.S.C. §§ 1221(a), 2302(b)(8), (b)(9)(A)(i); see Mudd,
120 M.S.P.R. 365, ¶ 7 (recognizing that Congress expanded the Board’s IRA
jurisdiction in the Whistleblower Protection Enhancement Act of 2012 to include
this type of activity). The Board has recognized that it has jurisdiction over a
claim that an agency retaliated against an individual because it perceived that
individual to have engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C).
Corthell, 123 M.S.P.R. 417, ¶¶ 9-12. Such a perception may arise when an
agency learns that an appellant has threatened to engage in the activity. See
Mausser v. Department of the Army , 63 M.S.P.R. 41, 44 (1994) (observing that an
4 He filed the instant appeal approximately 2 months later. IAF, Tab 1. 9
appellant might be entitled to protection under whistleblower protection statutes
if he threatened to make, but did not actually make, a protected disclosure). We
discern no basis to distinguish the Board’s reasoning regarding perceived
protected activity under section 2302(b)(9)(C) from perceived protected activity
under section 2302(b)(9)(A)(i). Therefore, we remand this claim for a
determination of whether the appellant established jurisdiction over this claim,
see Corthell, 123 M.S.P.R. 417, ¶ 13, and, if so, for adjudication on the merits.
We remand the appellant’s claims of retaliation for his disclosure regarding the
consideration of community service in awarding QSIs and filing an OSC
complaint.
The administrative judge found that the appellant failed to prove that he
reasonably believed that the agency’s consideration of community service in
awarding QSI’s evidenced wrongdoing under section 2302(b)(8). ID at 12-13.
The appellant disputes this finding, arguing that he proved that he reasonably
believed that the agency violated a law, rule, or regulation. PFR File, Tab 1 at 9.
The administrative judge found that the appellant failed to identify any authority
that “expressly prohibits” this consideration. ID at 13. We reverse this finding
and remand the appeal for further consideration of this disclosure.
Ordinarily, at the merits stage of an IRA appeal, an appellant must identify
the law, rule, or regulation that he believes an agency violated. Langer v.
Department of the Treasury , 265 F.3d 1259, 1262-63, 1266 (Fed. Cir. 2001).
However, “this requirement does not necessitate the identification of a statutory
or regulatory provision by title or number, when the employee’s statements and
the circumstances surrounding the making of those statements clearly implicate
an identifiable violation of law, rule, or regulation.” Id. at 1266. Here, we find
that the appellant’s statements clearly implicate the requirement that QSIs be
awarded based on performance.
The purpose of QSIs is to provide appropriate incentives and recognition
for excellence in performance by granting faster-than-normal step increases.10
5 C.F.R. § 531.503. As discussed above, performance is the only merit-based
consideration enumerated in the statute regarding QSIs and its implementing
regulations. 5 U.S.C. § 5336(a); 5 C.F.R. § 531.504. Similarly, per the agency’s
policy, QSIs “may only be given to employees who have exceeded all critical
elements, and only to those employees who have displayed the highest quality
performance, significantly above that ordinarily found in the type of position to
which the employee is assigned and is expected to continue.” IAF, Tab 14
at 105-06.
More generally, performance standards should be designed to measure
performance on job criteria. 5 U.S.C. § 4302(c). Indeed, it is prohibited to
discriminate against an employee on the basis of conduct which does not
adversely affect the employee’s performance. 5 U.S.C. § 2302(b)(10). We find
that a person in the appellant’s position could reasonably conclude that, to the
extent the agency considered factors other than performance in awarding QSIs, it
violated a law, rule, or regulation. See Webb, 122 M.S.P.R. 248, ¶ 6 (finding that
an appellant need not prove the matter disclosed actually evidenced wrongdoing,
but rather, that a reasonable person would believe it did). Therefore, we reverse
the administrative judge’s finding that the appellant’s disclosure was not
protected because he failed to specifically identify the law that the agency
violated.
It is less clear from the record, however, whether the appellant reasonably
believed that the agency was, in fact, considering community service in QSIs and
whether he made such a disclosure. The appellant testified that employees he
nominated in 2012 and 2016 were not awarded QSIs. HCD, Track 7 at 22:10
(testimony of the appellant). He indicated that the employees were eliminated
because they did not receive awards based, in part, on community service. Id.;
IAF, Tab 38 at 8-11. He further testified that he told the Deputy Director to the
Special Operations Groups Commander (Deputy Director), who he alleges
influenced the deciding official, about his concerns. HCD, Track 7 at 28:2011
(testimony of the appellant). The Deputy Director, on the other hand, testified
that the appellant never raised an issue to him about considering community
service in awarding QSIs. HCD, Track 6 at 10:30 (testimony of the Deputy
Director).
Because a finding on the reasonableness of the appellant’s belief and
whether he made the purported disclosure depends on the resolution of credibility
and factual matters, we remand this appeal so that the administrative judge, who
conducted the hearing in which these matters were addressed, can make the initial
findings and conclusions as to those issues. See Marchese v. Department of the
Navy, 65 M.S.P.R. 104, 109 (1994) (remanding an appeal for the administrative
judge who held the hearing to make factual findings on disputed matters in the
first instance).
As noted, the appellant on review reasserts the claim that his telework was
suspended 2 weeks after he informed the agency that he had filed an OSC
complaint. PFR File, Tab 1 at 9-10; W-2 AF, Tab 12 at 7; W-3 AF, Tab 8 at 5.
Despite finding jurisdiction over this activity, which is protected under 5 U.S.C.
§ 2302(b)(9)(C), the administrative judge did not address in the initial decision
whether the appellant proved the merits of this claim. W-3 AF, Tab 12 at 3.
Because it is undisputed that the appellant did, in fact, file his first OSC
complaint after receiving his letter of reprimand in October 2017, and OSC closed
its investigation in September 2018, we find that the appellant proved by
preponderant evidence that he engaged in protected activity. IAF, Tab 1 at 3, 6-7,
51-52. Thus, we must remand this claim for a determination as to whether the
appellant proved by preponderant evidence that his OSC complaint was a
contributing factor in the decision to revoke his telework eligibility in August
2018. W-3 AF, Tab 7 at 70 -75; see Corthell, 123 M.S.P.R. 417, ¶ 8. 12
The administrative judge correctly found that the appellant failed to establish that
his forgery disclosure was a contributing factor in the personnel actions.
The administrative judge found that the forgery disclosure, which occurred
approximately 6 years before the personnel actions at issue in this appeal, was too
distant to satisfy the timing element of the knowledge/timing test. ID at 9-10.
The parties do not challenge this finding on review, and we see no reason to
disturb it.
The administrative judge then considered other evidence of contributing
factor, but nonetheless found that the appellant failed to meet his burden. ID
at 10-12. The appellant on review challenges this determination.5 PFR File,
Tab 1 at 1-10. We agree with the administrative judge.
The Board has held that, if an administrative judge determines that an
appellant has failed to satisfy the knowledge/timing test, he shall consider other
evidence in determining whether the appellant has met his burden on contributing
factor. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012). This
other evidence includes the strength or weakness of the agency’s reasons for
taking the personnel action, whether the whistleblowing was personally directed
at the proposing or deciding officials, and whether these individuals had a desire
or motive to retaliate against the appellant. Id.
The administrative judge found that the agency had strong reasons to
reprimand the appellant based on his discourteous email suggesting that a ship in
need of repairs was a “Vomit Comet,” and that if the contracting officer rode on it
she would place greater priority on the funding of its repair. ID at 10-11. The
appellant disagrees, arguing that the deciding official, his second-level
supervisor, admitted to using “profanity and much more discourteous language”
5 To the extent the appellant is challenging the underlying merits of the personnel
actions, the Board lacks the authority to adjudicate the merits of the personnel actions at
issue in this IRA appeal. Lu v. Department of Homeland Security , 122 M.S.P.R. 335,
¶ 7 (2015). Further, the Board generally does not otherwise have appellate jurisdiction
over a letter of reprimand or revocation of telework. See generally 5 C.F.R.
§ 1201.3(a)-(b) (listing the bases for the Board’s appellate jurisdiction).13
with his peers. PFR File, Tab 1 at 7. He also seeks to deflect blame onto the
contracting officer and the Deputy Director for failing to act on his funding
requests. Id. at 1-2, 7-8.
We nevertheless agree with the administrative judge that the appellant’s
email was discourteous, especially given that he copied several individuals on the
email who were not originally part of the exchange. IAF, Tab 1 at 46, 56-57. To
the extent that the appellant is seeking to mitigate the severity of his misconduct,
we cannot review the appropriateness of the agency’s penalty in an IRA appeal
such as this one. Weaver v. Department of Agriculture , 55 M.S.P.R. 569, 576
(1992); see Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981)
(providing a nonexhaustive list of factors relevant to penalty determinations in a
chapter 75 appeal, including the consistency of the penalty and mitigating factors
such as unusual job tensions or provocation on the part of others involved in the
matter).
Further, the appellant does not claim that he raised his frustration with the
funding process to the deciding official as a justification for his behavior. IAF,
Tab 1 at 49. As to the alleged similar behavior of the deciding official, the
appellant provides no specific citations in his petition for review. PFR File,
Tab 1 at 7. To the extent he is relying on an email exchange the deciding official
had with a peer that is contained in the record, this exchange reflects a mutual
understanding of a more casual relationship. W-3 AF, Tab 8 at 232. Specifically,
the deciding official’s colleague first emailed, “Don’t make me pop you in the
mouth,” to which the deciding official responded, “I’ll crack you in the butt
face!” Id. No other individuals were included on the exchange. We do not find
this exchange similar to the appellant’s one-sided email to the contracting officer.
Finally, as the administrative judge observed, a letter of reprimand is a very low14
level of discipline and evidenced a corrective response from the deciding official
here.6 ID at 11.
The administrative judge also found that the appellant’s false claim that
legal authorities supported his section’s entitlement to its own QSI was a strong
reason for the agency’s charge of deliberate misrepresentation. ID at 10-11. We
agree. IAF, Tab 1 at 46. The appellant argues that this is “double jeopardy,” in
that his first-level supervisor did not believe he misrepresented the CFR.
PFR File, Tab 1 at 8. The appellant appears to be referring to the principle that
an agency may not discipline an employee twice for the same misconduct. See
Frederick v. Department of Homeland Security , 122 M.S.P.R. 401, ¶ 4 n.2, ¶ 6
(2015). This principle has no bearing on this appeal, as there is no allegation that
the appellant was disciplined for his misconduct twice.
Finally, the appellant challenges the administrative judge’s finding that the
agency had strong reasons for revoking the appellant’s telework. PFR File, Tab 1
at 3-4, 6, 8. The administrative judge credited the testimony of the appellant’s
second-level supervisor that the appellant’s position required face-to-face
interaction with his subordinates. ID at 11. He further agreed with this witness
and the appellant’s first-level supervisor that the agency’s policy generally
prohibited employees disciplined within the last year from teleworking, and that
there was no deleterious effect on the agency’s mission due to the telework
revocation. ID at 11-12. The Board must defer to an administrative judge’s
credibility determinations when they are based, explicitly or implicitly, on
observing the demeanor of witnesses testifying at a hearing; the Board may
6 The appellant further claims that the proffered reason for his letter of reprimand was
not the real reason for the discipline, and that the agency admitted to such. PFR File,
Tab 1 at 11. He raised this argument below, asserting that the deciding official
provided additional, retaliatory reasons for the letter of reprimand. W-3 AF, Tab 8
at 12. What the appellant references is a list of concerns regarding the appellant’s
pattern of behavior outlined by the deciding official, and an urging of the appellant to
take the discipline seriously. IAF, Tab 1 at 51-52. These concerns are not cited as
justification for the discipline and do not demonstrate an alternative basis for the letter
of reprimand. 15
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).
Indeed, the Board must give “special deference” to an administrative judge’s
demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly
discussed.” Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1373
(Fed. Cir. 2016).
The appellant challenges these credibility findings, arguing that “mission
critical” positions, such as his, do not require telework suspension under the
agency policies, and that his telework was revoked for 2 years rather than just 1
year as mandated by the policy. PFR File, Tab 1 at 3-4. He further argues that
his duties were largely administrative, he did not need face-to-face interaction
with subordinates, and his telework agreement had been approved for the last
8 years without any problem. Id. We find that the appellant has failed to identify
sufficiently sound reasons for overturning the administrative judge’s credibility
determinations. As such, we decline to disturb his conclusion that the agency’s
reasons for revoking the appellant’s eligibility to telework were strong.
The administrative judge next found that the appellant’s forgery disclosure
was not directed at the individuals responsible for taking the personnel actions.
ID at 12. The appellant does not challenge this finding on review, and we see no
reason to disturb it.
Lastly, the administrative judge found that there was no evidence that the
management officials responsible for the personnel actions were involved in the
decision to transition the appellant from the NSPS at the GS-12 level. ID at 12.
Therefore, he concluded they did not have a motive to retaliate based on the
appellant’s forgery disclosure. Id. The appellant argues on review that there was
a long-standing conflict between himself and the Deputy Director, who he alleges
influenced his second-level supervisor to issue the reprimand and revoke the
appellant’s telework. PFR File, Tab 1 at 6-7. Moreover, he alleges that the
Deputy Director was “in charge” of the transition to the GS scale for employees,16
and thus he had a motive to retaliate against the appellant for alerting
management to errors in that process. Id. at 4-7.
We are not persuaded by these contentions. In making his finding
regarding the Deputy Director’s lack of motive, the administrative judge relied on
the testimony of the appellant’s first-level supervisor that the Deputy Director
was supportive of the appellant’s internal appeal and efforts to be classified at the
GS-13 level. ID at 12; HCD, Track 1 at 52:00 (testimony of the Commander).
The appellant is essentially disagreeing with the administrative judge’s credibility
determinations, which we decline to disturb. See Haebe, 288 F.3d at 1301.
The appellant’s remaining arguments on review are unpersuasive.
The appellant argues that his attorneys below failed to file motions to
compel discovery, and generally claims that his attorneys provided ineffective
counsel. PFR File, Tab 1 at 10. Even if true, the presence of inadequate counsel
is not a basis for reversal because the appellant is held responsible for the action
or inaction of his counsel . Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 7
(2010), overruled on other grounds by Thurman v. U.S. Postal Service ,
2022 MSPB 21. Further, because the appellant did not file a motion to compel
below, he is precluded from raising the discovery issue on review. Szejner v.
Office of Personnel Management , 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F.
App’x 217 (Fed. Cir. 2006).
The appellant also argues that the administrative judge inappropriately
denied a witness that both parties requested. PFR File, Tab 1 at 10. The
administrative judge denied this witness as irrelevant in his prehearing conference
memorandum. W-3 AF, Tab 12 at 4. There is no indication that the appellant
objected to this ruling below and, thus, the matter is not properly preserved for
review. See McCarty v. Department of the Navy , 67 M.S.P.R. 177, 180-81
(1995).
Finally, the appellant attaches what he purports to be new and material
evidence on review. PFR File, Tab 1 at 10, 14-41. The Board will grant a17
petition for review when, among other reasons, new and material evidence is
available that, despite the petitioner’s due diligence, was not available when the
record closed. Ellis v. U.S. Postal Service , 121 M.S.P.R. 570, ¶ 6 (2014);
5 C.F.R. § 1201.115(d). The documents submitted by the appellant predate the
close of record below, and the appellant has not explained why he did not submit
them at that time. PFR File, Tab 1 at 10, 14-41; W-3 AF, Tab 12 at 1, 5;
see Avansino v. U.S. Postal Service , 3 M.S.P.R. 211, 213-14 (1980) (explaining
that under 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record was closed before the administrative judge despite
the party’s due diligence).7
ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
On remand, the administrative judge must make a finding as to whether the
appellant established jurisdiction over his claim that the agency retaliated against
him for threatening to file an IRA appeal and thus perceived him to be a
whistleblower, and, if so, adjudicate that claim on the merits.
The administrative judge must also make a finding as to whether the
appellant proved by preponderant evidence that he reasonably believed that the
agency was using community service in awarding QSIs. If so, the administrative
judge should proceed to make findings as to whether the appellant proved he
made this disclosure and, if so, if he proved it contributed to the letter of
reprimand or the revocation of his telework eligibility. The administrative judge
7 The appellant also disagrees that the individual the administrative judge identified
below as the appellant’s second-level supervisor held this level of authority over him.
PFR File, Tab 1 at 1, 6. We have continued to refer to this individual as the appellant’s
second-level supervisor for the sake of consistency. We are not persuaded that the use
of this designation was improper and, in any event, any error is inconsequential and
therefore does not warrant reversal of the initial decision. See Panter, 22 M.S.P.R.
at 282.18
must also make a determination as to whether the appellant proved that his OSC
complaint was a contributing factor in the revocation of his telework.
If the appellant proves a prima facie case of retaliation as to any of these
claims, the administrative judge shall decide whether the agency proved by clear
and convincing evidence that it would have taken the same action or actions
absent the appellant’s protected disclosure, OSC complaint, or status as a
perceived whistleblower. See Corthell, 123 M.S.P.R. 417, ¶ 8 (explaining that
the Board will not order corrective action if the agency demonstrates by clear and
convincing evidence that it would have taken the same personnel action in the
absence of the protected disclosure or activity).
In adjudicating the merits on remand, the administrative judge shall
determine whether the parties had an opportunity to present testimony or evidence
on the remanded issues. If not, he should hold a supplemental hearing. In the
remand initial decision, the administrative judge may reincorporate prior findings
as appropriate, consistent with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.19 | Osborne_Samuel_A_AT-1221-19-0077-W-3_Remand_Order.pdf | 2024-08-07 | SAMUEL ALAN OSBORNE v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-1221-19-0077-W-3, August 7, 2024 | AT-1221-19-0077-W-3 | NP |
754 | https://www.mspb.gov/decisions/nonprecedential/David_Theresa_L_AT-315H-23-0446-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESA L. DAVID,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
AT-315H-23-0446-I-1
DATE: August 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Theresa L. David , Smyrna, Georgia, pro se.
Sundrea Richardson , 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.
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant challenges the merits of the agency’s
termination, alleging that her absences were due to illness, and requests to return
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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 work, subject to a new probationary period. Generally, we grant petitions such
as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review 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, 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision. 4
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 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 | David_Theresa_L_AT-315H-23-0446-I-1_Final_Order.pdf | 2024-08-07 | THERESA L. DAVID v. DEPARTMENT OF THE TREASURY, MSPB Docket No. AT-315H-23-0446-I-1, August 7, 2024 | AT-315H-23-0446-I-1 | NP |
755 | https://www.mspb.gov/decisions/nonprecedential/Chaplin_ScottPH-1221-20-0198-W-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT CHAPLIN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-20-0198-W-1
DATE: August 7, 2024
THIS ORDER IS NONPRECEDENTIAL1
Scott Chaplin , Hooksett, New Hampshire, pro se.
M. Creston Rice , Esquire, Bedford, Massachusetts, 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 individual right of action (IRA) appeal for lack of jurisdiction. For
the reasons discussed below, we GRANT the appellant’s petition for review,
REVERSE the administrative judge’s finding that the appellant did 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).
nonfrivolously allege a protected disclosure regarding the Acting Physical
Security Officer (PSO) position, FIND that the appellant nonfrivolously alleged
that his disclosure regarding the Acting PSO position was a contributing factor in
personnel actions and thus established Board jurisdiction over that claim,
AFFIRM the remainder of the initial decision, and REMAND the case to the
Northeastern Regional Office for further adjudication in accordance with this
Remand Order.
BACKGROUND
The appellant is employed by the agency as a Police Lieutenant, GS-08, at
its Medical Center in Manchester, New Hampshire. Initial Appeal File (IAF),
Tab 1 at 1. The following facts recited here are as the appellant asserted them
below and are neither proven nor disproven by the record. Since September 2019,
the appellant had been performing the duties of the Acting Deputy Chief of
Police. Id. at 4. It is undisputed that the agency was seeking to permanently fill
the Deputy Chief position, and the appellant sought a formal promotion to that
position. Id.; IAF, Tab 8 at 4. However, according to the appellant, the Chief of
Police attempted to convince him to agree to a temporary promotion to the Acting
PSO position, rather than pursue the permanent Deputy Chief position.2 IAF,
Tab 1 at 4. Based on the appellant’s recitation of a conversation between him and
the Chief of Police, the appellant informed the Chief of Police that he would not
be able to carry out the duties of his position while also taking on the duties of
the Acting PSO position. Id. The Chief of Police responded to the appellant,
claiming that, although the agency would temporarily promote him to the Acting
PSO position, another employee would perform the actual duties of the position.
Id. The appellant expressed his concern to the Chief of Police that it would be
unethical and illegal to temporarily promote him to a position but to have
2 The appellant’s claims below do not appear to contain an allegation that this attempt
to convince him to agree to a temporary promotion amounted to an order that he accept
the Acting PSO position. IAF, Tabs 1, 6.2
someone else perform the actual duties of the position while the appellant was the
one getting paid for the position. Id. Ultimately, it appears that the appellant
never accepted the temporary promotion to the Acting PSO position. Id. at 4-9.
Regarding the selection for the Deputy Chief position, the appellant
seemingly grew concerned that the Chief of Police had preselected his personal
friend for the position before the formal hiring process had fully unfolded. Id.
at 4-6. Due to the appellant’s suspicions regarding the merits of the agency’s
selection process in this regard, he told the Chief of Police that, in order to
protect himself, he should remove himself from the selection process. Id. at 6.
According to the appellant, the Chief of Police did not do so. Id. It is undisputed
that, on or around January 10, 2020, the Chief of Police informed the appellant
that he was not selected for the Deputy Chief position. Id. at 6; IAF, Tab 8 at 5.
Shortly thereafter, the appellant filed a complaint with the Office of Special
Counsel (OSC), wherein he asserted that the Chief of Police engaged in several
improper selection practices in the hiring process for the Deputy Chief position,
and that he did not select the appellant for that position in reprisal for the
appellant’s expression of concerns to the Chief of Police regarding his alleged
unethical conduct related to the Acting PSO position and the Deputy Chief
selection process. IAF, Tab 6 at 16-44. On March 10, 2020, OSC issued the
appellant a letter informing him that it was terminating its inquiry into his
allegations and that he may seek corrective action from the Board. IAF, Tab 4
at 4.
Thereafter, the appellant filed the instant appeal with the Board, arguing
that the agency did not select him for the Deputy Chief position and interfered
with his ability to perform his duties in reprisal for his open communication,
including expressing to the Chief of Police his concerns regarding the Chief’s
actions surrounding his encouragement that the appellant take the Acting PSO
position and selection of a personal friend for the Deputy Chief position. IAF,
Tab 1 at 4-9. Recognizing that the appellant was filing an IRA appeal based on3
whistleblower reprisal, the administrative judge issued an order informing the
appellant of what he must show and allege in order to establish jurisdiction over
his appeal. IAF, Tab 2 at 2-4. The appellant responded by submitting OSC’s
close-out letter regarding his OSC complaint. IAF, Tab 4.
In a subsequent order to show cause, the administrative judge informed the
appellant that, based on his pleadings thus far, he had yet to make a nonfrivolous
allegation of Board jurisdiction, and he again ordered the appellant to file a
pleading nonfrivolously alleging Board jurisdiction over his claims. IAF, Tab 5
at 2, 4. The appellant responded to the order, explaining why he believed the
Chief of Police’s actions constituted a potential violation of law, rule, or
regulation, gross mismanagement, and an abuse of authority. IAF, Tab 6 at 4. He
reiterated that he was not selected for the Deputy Chief position and that the
agency interfered with his ability to perform his duties in reprisal for his
disclosures to the Chief of Police, and he asserted that the actions referenced all
occurred between October 10, 2019, and January 17, 2020. Id. at 4, 11.
Additionally, he submitted his OSC complaint. Id. at 16-44. His claims do not
appear to contain any other allegations that, prior to January 17, 2020—the date
around which he filed his OSC complaint—he filed any sort of appeal, complaint,
or grievance, or participated in any other activity protected under 5 U.S.C.
§ 2302(b)(9).
The administrative judge issued an initial decision without holding a
hearing,3 and dismissed the appellant’s appeal for lack of jurisdiction. IAF,
Tab 10, Initial Decision (ID). He found that, although the appellant exhausted his
administrative remedy with OSC, ID at 6, he failed to nonfrivolously allege that
the agency did not select him for the Deputy Chief position in reprisal for making
a protected disclosure, and also failed to identify any protected activity which
took place before the alleged acts of retaliation, ID at 7-10. These findings
appear to include indirect findings that the appellant failed to nonfrivolously
3 The appellant did not request a hearing. IAF, Tab 1 at 2. 4
allege that he made a protected disclosure or engaged in protected activity that
was a contributing factor to his nonselection. Id.
The appellant has filed a petition for review, wherein he argues that the
administrative judge miscategorized the content and substance of his alleged
disclosures, and that the content and substance of the disclosures alleged a
violation of law, rule, or regulation, and an abuse of authority. Petition for
Review (PFR) File, Tab 1 at 4-7. He also appears to allege, for the first time, that
the Chief of Police’s insistence and encouragement that he take the Acting PSO
position amounted to an order to accept the position, that such an order violated a
law, rule, or regulation, and that he refused to obey that order. Id. at 5-7. He
claims that this conduct amounted to protected activity under 5 U.S.C. § 2302(b)
(9)(D). Id. at 5-7. The agency has filed a response in opposition to the
appellant’s petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board has jurisdiction over an IRA appeal under the Whistleblower
Protection Enhancement Act if the appellant has exhausted his administrative
remedies before OSC and makes nonfrivolous allegations that: (1) he made a
disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity
described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action. Salerno v. Department of the Interior,
123 M.S.P.R. 230, ¶ 5 (2016).
It is undisputed that the appellant exhausted his administrative remedy with OSC
regarding his protected disclosures under 5 U.S.C. § 2302(b)(8).
As an initial matter, t he record demonstrates, and neither party disputes,
that the appellant exhausted with OSC his claim that the agency did not select
him for the Deputy Chief position and interfered with his ability to perform his
duties in reprisal for his alleged disclosures to the Chief of Police regarding what5
the appellant believed was illegal or unethical behavior by the Chief in the hiring
process for the Deputy Chief. IAF, Tab 4 at 4, Tab 6 at 24-30. As such, we agree
with the administrative judge’s conclusion that the Board may consider these
claims.4 ID at 6; see Mason v. Department of Homeland Security, 116 M.S.P.R.
135, ¶ 8 (2011) (stating that the Board may consider only matters that the
appellant first raised and exhausted before OSC). Therefore, the issue currently
before the Board is whether the appellant nonfrivolously alleged that his
disclosures were protected under 5 U.S.C. § 2302(b)(8), and that his protected
disclosures were a contributing factor to the agency’s decisions not to select the
appellant for the Deputy Chief position and to interfere with his ability to perform
his duties.5 See Salerno, 123 M.S.P.R. 230, ¶ 5. As explained below, we find
that the appellant has nonfrivolously alleged that he made a protected disclosure
that was a contributing factor to the personnel actions at issue, and that he has,
therefore, established the Board’s jurisdiction over his claims.
The appellant nonfrivolously alleged that he made a protected disclosure.
A nonfrivolous allegation of a protected disclosure is an allegation of facts
that, if proven, would show that the appellant disclosed a matter that a reasonable
person in his position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). Id., ¶ 6. The test to determine
whether a putative whistleblower has a reasonable belief in the disclosure is an
objective one: whether a disinterested observer with knowledge of the essential
facts known to and readily ascertainable by the employee could reasonably
conclude that the actions of the agency evidenced a violation of law, rule,
4 We address the appellant’s argument, raised for the first time on review, that he
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(D) separately below.
5 A nonselection for appointment is a personnel action under the whistleblower
protection statutes. King v. Department of the Army, 116 M.S.P.R. 689, ¶ 10 (2011 );
see 5 U.S.C. § 2302(a)(2)(A)(i). We also construe the appellant’s claim that the agency
interfered with his ability to perform his duties as a claim that the appellant suffered a
significant change in duties, responsibilities, or working conditions so as to constitute a
personnel action under 5 U.S.C. § 2302(a)(2)(A)(xii). 6
regulation, gross mismanagement, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or safety. Id.
As previously discussed, the appellant alleged below that he told the Chief
of Police that, by encouraging him to accept an appointment to a position for
which he would not be performing the duties but would still be paid, he acted
unethically, could be violating a law, rule, or regulation if the Chief’s preferred
outcome resulted, and abused his authority. IAF, Tab 1 at 4-5. In the initial
decision, the administrative judge reasoned that this disclosure “does not
sufficiently disclose ‘a violation of law, rule, or regulation’ to make it protected”
within the meaning of the whistleblower statutes because it was a “one time”
statement made when declining a job offer. ID at 8. As noted above, the
appellant also alleged below that he told the Chief of Police that he should recuse
himself from the selection process for the Deputy Chief position so that the
selection process appeared more impartial. IAF, Tab 1 at 6. He asserted that this
was a disclosure of gross mismanagement. IAF, Tab 6 at 4. In the initial
decision, the administrative judge concluded that the appellant’s concerns
constituted, at most, “nothing more than a disagreement over who should
participate in the selection process for the Deputy Chief position[,]” and that,
because his “disagreement over the composition of the hiring committee did not
involve a disclosure of a potential violation of a law, rule[,] or regulation it does
not meet the definition of a protected disclosure.” ID at 9 (citing Webb
v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8 (2015)).
On review, the appellant argues that the administrative judge did not
properly construe the full contents of his alleged disclosures. PFR File, Tab 1
at 4-6. For example, he argues that the administrative judge failed to consider
that his alleged disclosure regarding the Acting PSO position included not only
the assertion that it would be unethical to accept the promotion to the Acting PSO
position, but also that such a scenario would require someone else to perform the
duties of the Acting PSO position while the appellant was paid for it. Id. at 5-6.7
He also challenges the administrative judge’s conclusion that this alleged
disclosure was not protected, and he continues to assert that the disclosure alleged
at least one of the categories of wrongdoing set forth in section 2302(b)(8). Id.
at 4-6. As explained below, we find that the appellant nonfrivolously alleged that
this disclosure was protected under section 2302(b)(8).
To make a protected disclosure of a violation of a law, rule, or regulation,
an employee ordinarily must identify a specific law, rule, or regulation that was
violated; however, our reviewing court has stated that an appellant need not
allege a violation of law with precise specificity “when the statements and
circumstances surrounding the making of those statements clearly implicate an
identifiable violation of law, rule, or regulation.” Langer v. Department of the
Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001). Although the appellant has not
referenced a specific law, rule, or regulation at issue here, it is nonetheless
axiomatic that a Federal employee may not be paid for the performance of duties
that he did not actually perform, and we find that a reasonable person in the
appellant’s position could conclude that such actions would evidence a violation
of a law, rule, or regulation. See Salerno, 123 M.S.P.R. 230, ¶ 6.
In this case, however, the appellant did not disclose that the agency
ultimately placed him in a position for which he would be paid without
performing the duties, thus leaving another agency employee to perform the
duties without being paid, because that did not actually occur here; rather, the
appellant appears to allege that the agency’s future placement of him in the
Acting PSO position would have violated a law, rule, or regulation. IAF, Tab 1
at 4. Our reviewing court has held that an employee’s reasonable belief that a
violation of law, rule, or regulation is imminent is sufficient to confer jurisdiction
on the Board. See Reid v. Merit Systems Protection Board, 508 F.3d 674, 677
(Fed. Cir. 2007); see also Weed v. Social Security Administration, 113 M.S.P.R.
221, ¶ 9 (2010) (citing Reid in support of the proposition that the whistleblower
protection statutes should be broadly construed). Although it is not yet clear8
whether the appellant reasonably believed such actions were imminent, the Board
has stated that any doubt or ambiguity as to whether the appellant made a
nonfrivolous jurisdictional allegation should be resolved in favor of finding
jurisdiction. See Usharauli v. Department of Health & Human Services,
116 M.S.P.R. 383, ¶ 19 (2011). Accordingly, we find that the appellant
nonfrivolously alleged that he disclosed a violation of law, rule, or regulation in
this regard. See id.
We similarly find that the appellant’s alleged disclosure regarding the
Acting PSO position meets the nonfrivolous allegation standard for an allegation
of an abuse of authority.6 An employee discloses an abuse of authority when he
alleges that a Federal official has arbitrarily or capriciously exercised power
which has adversely affected the rights of any person or has resulted in personal
gain or advantage to himself or to preferred other persons. Webb, 122 M.S.P.R.
248, ¶ 19 n.3. Here, the appellant has alleged that he effectively disclosed that
the Chief of Police used his authority as a high-ranking agency official to attempt
to convince the appellant to accept the Acting PSO position so that he would not
pursue the Deputy Chief position, thus facilitating the Chief of Police’s selection
of a personal friend, rather than the appellant, for that position. Because the
Chief of Police’s alleged actions would result in a personal gain, namely, the
ability to select his personal friend rather than the appellant for the Deputy Chief
position, we find that the appellant nonfrivolously alleged that he disclosed an
abuse of authority.7 Id.
6 Upon remand, should the appellant fail to prove by preponderant evidence that he
disclosed what he reasonably believed was an imminent violation of law, rule, or
regulation, he may also, based on our finding here, aim to prove by preponderant
evidence that he disclosed what he reasonably believed was an abuse of authority.
7 Regarding the appellant’s alleged disclosure concerning the purported
inappropriateness of the Chief of Police’s participation in the selection process, the
appellant essentially challenges on review the administrative judge’s finding that this
disclosure evidenced a mere policy disagreement. PFR File, Tab 1 at 6-7. He argues
that the contents of his allegation amounted to an allegation of a preselection, and that a
preselection “is a prohibited practice,” and should, therefore, be covered under section9
Based on the foregoing, we find that the appellant nonfrivolously alleged a
violation of a law, rule, or regulation, and an abuse of authority under section
2302(b)(8) when he disclosed to the Chief of Police that he was improperly
attempting to convince him to take the Acting PSO promotion.8
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that he engaged in protected activity under 5 U.S.C.
§ 2302(b)(9).
As discussed above, the appellant claimed below that all of the actions
alleged occurred between October 27, 2019, and January 17, 2020. IAF, Tab 6
at 4. In the initial decision, the administrative judge observed that the appellant
“never identified any complaints, appeals[,] or grievances” that he filed before
January 17, 2020.9 ID at 10. Indeed, we have reviewed the record and, as briefly
2302(b)(8). Id. The appellant’s alleged disclosure, however, was not of preselection or
even of a suspicion of a preselection. IAF, Tab 1 at 6. Rather, the appellant has only
alleged that he “told [the Chief] a couple of times that[,] to protect ourselves[,] we
needed to have a panel/board for [the Deputy Chief position] and that [he] should
remove himself from the process.” Id. As stated above, the administrative judge
concluded that this allegation did not meet the definition of a protected disclosure, and
we agree. ID at 9. As the administrative judge correctly noted, “having the head of a
particular department or office serve as either the selecting official or a member of a
hiring committee for a position within that department or office is not unusual and
certainly does not violate any law, rule or regulation.” Id. The appellant’s alleged
disclosure did not extend beyond a suggestion that the Chief of Police remove himself
from the panel; he has not alleged that he told the Chief that any of his actions or
imminent actions violated a law, rule, or regulation, or amounted to any other sort of
wrongdoing as contemplated by section 2302(b)(8). IAF, Tab 1 at 6. Accordingly, the
administrative judge correctly found that the appellant failed to make a nonfrivolous
allegation of a protected disclosure in this regard.
8 The fact that the alleged disclosures of wrongdoing were made to the alleged
wrongdoer does not exclude them from coverage under section 2302(b)(8). See Day
v. Department of Homeland Security, 119 M.S.P.R. 589, ¶ 18 (2013 ).
9 The administrative judge’s reliance on the January 17, 2020 date appears to be most
relevant to the principle that an alleged protected disclosure or protected activity that
occurs after an alleged personnel action could not have been a contributing factor to
that action. See Mason, 116 M.S.P.R. 135, ¶ 27. Thus, in considering whether the
appellant nonfrivolously alleged that he engaged in protected activity, the
administrative judge appears to have considered only whether the appellant alleged that
he engaged in protected activity before the nonselection occurred. ID at 9-10. 10
noted above, have not located any claim that the appellant participated in these
activities prior to January 17, 2020. The administrative judge further stated that,
“before that date [the appellant] appears not to have cooperated in any
investigations or disclosed any information to the Office of the Inspector or the
OSC, and there is no indication he refused to follow an illegal order.” Id. As
such, he found that the “lack of information concerning the appellant’s purported
protected activities means [that] he has not made nonfrivolous allegations of fact
sufficient to establish jurisdiction over this claim.” Id.
On review, the appellant only challenges the administrative judge’s
statement that “there is no mention of any illegal order given to [the appellant] by
management which he refused to obey.” PFR File, Tab 1 at 5; ID at 5. Thus, we
construe this challenge as an allegation, made for the first time on review, that he
engaged in protected activity under section 2302(b)(9)(D) when he refused to
obey an order that would require him to violate a law, rule, or regulation. See
5 U.S.C. § 2302(b)(9)(D). Although the appellant did not specifically allege
below that the he refused to obey an illegal order, and the Board will generally
not consider an argument raised for the first time on review absent a showing that
it is based on new and material evidence that was not previously available despite
the party’s due diligence, Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6
(2016), we will consider the appellant’s new argument on this jurisdictional issue
because jurisdiction is always before the Board and may be raised by any party or
sua sponte by the Board at any time during Board proceedings , see Lovoy
v. Department of Health & Human Services, 94 M.S.P.R. 571, ¶ 30 (2003).
In consideration of this claim, we first note that it appears that the
appellant has exhausted it with OSC. IAF, Tab 6 at 26. Nonetheless, we have
been unable to locate any actual order identified by the appellant that he refused
to obey. PFR File, Tab 1 at 4-5; IAF, Tabs 1, 6. To the contrary, his allegations
regarding the Chief of Police’s efforts to convince him to take the promotion to
the Acting PSO position do not suggest that those efforts constituted an order.11
For example, the appellant stated in his initial appeal that the Chief of Police
explained to him that he and other agency administrative officials “were trying to
throw [him] a bone to offer [him] the [Acting] PSO position since [he] never
received compensation for the Acting [Deputy Chief] position” he was currently
filling. IAF, Tab 1 at 4. The appellant has not alleged any set of facts that, if
true, demonstrate that the Chief of Police ordered him to accept the Acting PSO
position; rather, his allegations evidence a vague insinuation supported only by
his own beliefs that he was ordered to take the promotion to that position.
Accordingly, we find that, as a matter of law, the appellant has failed to
nonfrivolously allege that he refused to obey an order that would require him to
violate a law, rule, or regulation. As such, we find that he failed to
nonfrivolously allege that he engaged in protected activity under section 2302(b)
(9)(D). We further agree with the administrative judge that the appellant
otherwise failed to nonfrivolously allege that he engaged in any other protected
activity.
The appellant nonfrivolously alleged that his protected disclosure was a
contributing factor in the alleged personnel actions.
Because the appellant nonfrivolously alleged that his disclosure was
protected under 5 U.S.C. § 2302(b)(8), he must next nonfrivolously allege that it
was a contributing factor in the personnel actions at issue. See Salerno,
123 M.S.P.R. 230, ¶ 5. To satisfy the contributing factor criterion at the
jurisdictional stage, the appellant need only raise a nonfrivolous allegation that
the fact of, or the content of, the protected disclosure was one factor that tended
to affect the personnel action in any way. Id., ¶ 13. One way to establish this
criterion is the knowledge/timing test, under which an employee may
nonfrivolously allege that the disclosure was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official who
took the personnel action knew of the disclosure and that the personnel action12
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 appellant has alleged that the Chief of Police was the agency official
responsible for his nonselection and for interfering with his ability to perform his
duties. IAF, Tab 1 at 6-7, 9. Because the appellant alleged that he made his
disclosure directly to the Chief of Police, we find that he has nonfrivolously
alleged that the agency official responsible for the personnel actions—the Chief
of Police—had actual knowledge of the disclosure, thereby satisfying the
knowledge prong of the knowledge/timing test.
Regarding the timing prong, the appellant has alleged that his nonselection
occurred on or around January 10, 2020, and that the Chief of Police began to
interfere with his ability to perform his duties on or around February 18, 2020.
Id. at 6, 9. Although the appellant has not alleged the specific dates on which he
made his disclosure, he appears to assert that all of the relevant actions occurred
between October 27, 2019, and January 17, 2020. IAF, Tab 6 at 4. A reasonable
interpretation of the appellant’s recitation of the chronology of events allows us
to conclude that he is alleging that he made his disclosure before the agency took
the alleged personnel actions against him. Id. Thus, it appears that the appellant
is alleging that the agency did not select him for the Deputy Chief position and
interfered with his ability to perform his duties within, at most, 3 -4 months of his
disclosure. The Board has stated that a personnel action that occurs within 1 to
2 years of the protected disclosure satisfies the timing portion of the knowledge/
timing test. Salerno, 123 M.S.P.R. 230, ¶ 14; see Mastrullo v. Department of
Labor, 123 M.S.P.R. 110, ¶ 21 (2015). As such, we find that the appellant has
met the timing prong of the knowledge/timing test. In conjunction with our
conclusion above regarding the knowledge prong, we, therefore, find that the
appellant nonfrivolously alleged that his protected disclosure was a contributing
factor in his nonselection and the agency’s interference with his ability to13
perform his duties. See Salerno, 123 M.S.P.R. 230, ¶ 13. Accordingly, we find
that he has established Board jurisdiction over his claims.
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.10
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
10 Having established Board jurisdiction over his IRA appeal, the appellant must now
prove his claims by preponderant evidence. Salerno, 123 M.S.P.R. 230, ¶ 5. If the
appellant proves by preponderant evidence that his protected disclosure was a
contributing factor in a personnel action taken against him, the agency is given an
opportunity to prove, by clear and convincing evidence, that it would have taken the
same personnel action in the absence of the protected disclosure. 5 U.S.C. § 1221(e)
(1)-(2); Salerno, 123 M.S.P.R. 230, ¶ 5. Upon remand, the administrative judge should
provide the parties with an opportunity to address whether discovery is needed to
adjudicate this appeal on the merits. Additionally, we reiterate that the appellant did
not request a hearing in this matter. IAF, Tab 1 at 2. 14 | Chaplin_ScottPH-1221-20-0198-W-1_Remand_Order.pdf | 2024-08-07 | SCOTT CHAPLIN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-20-0198-W-1, August 7, 2024 | PH-1221-20-0198-W-1 | NP |
756 | https://www.mspb.gov/decisions/nonprecedential/Caracciolo_RhondaDC-0432-22-0466-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RHONDA CARACCIOLO,
Appellant,
v.
FEDERAL DEPOSIT INSURANCE
CORPORATION,
Agency.DOCKET NUMBER
DC-0432-22-0466-I-1
DATE: August 7, 2024
THIS ORDER IS NONPRECEDENTIAL1
Rhonda Caracciolo , Raleigh, North Carolina, pro se.
Duane Pitt , Esquire, Atlanta, Georgia, for the agency.
Jill Weissman , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed her removal for failure to meet a condition of continued employment.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2The appellant was a CG-0570-09 Financial Institution Specialist in the
agency’s Division of Depositor and Consumer Protection in Raleigh, North
Carolina. Initial Appeal File (IAF), Tab 1 at 1, 8. On June 27, 2016, the date that
the appellant was appointed, she signed an agreement with the agency
acknowledging that she “must obtain a commission with the FDIC in Risk
Management, Compliance, Resolutions, or Receivership Management within
[4] years (48 months)” of her initial appointment, and that she understood “that
the FDIC [would] proceed with adverse action to effect [her] removal” from
federal service if she did not obtain her commission within 4 years. IAF, Tab 7
at 80-81. In June 2020, the agency extended the 4-year deadline by an additional
year due to COVID-19. IAF, Tab 8 at 127-28.
¶3The agency’s Examiner Training and Development Policy states that the
Regional Director (RD) determines whether to promote a pre-commissioned
examiner to a commissioned examiner based on core examination school results
or comparable experience; technical evaluation (TE) results; individual
development plan (IDP) and benchmark completion; on-the-job (OTJ)
performance; and Field Supervisor recommendation, and that Field Supervisors
“will consider OJT performance, TE results, core school performance, and IDP
completion when making a commissioning recommendation.” Id. at 270, 272.
The policy further provides that “[t]he RD has delegated authority to commission
a candidate who, after two attempts, does not achieve a score of 70 percent or
higher on the TE,” and that “[t]he decision to commission someone in this
scenario will be rare and will require notice to” additional personnel. Id. at 272. 2
¶4The appellant sat for her first TE on April 23, 2021 and scored 51%
overall.2 IAF, Tab 7 at 23. The agency subsequently placed her on an IDP to
improve her “technical knowledge” in preparation for retaking the TE, which she
completed. IAF, Tab 8 at 238-39. The appellant retook the TE a second time on
June 26, 2021 and scored 50% overall. IAF, Tab 7 at 24. On June 28, 2021, the
appellant’s Field Supervisor issued a letter stating, “I do not recommend
Financial Institution Specialist Caracciolo be promoted to Commissioned DCP
Examiner,” and discussed factors such as the appellant’s school results, TE
scores, and her job performance. Id. at 21-22. On July 22, 2021, the Field
Supervisor proposed the appellant’s removal for failure to meet a condition of
continued employment, per her agreement with the agency on June 27, 2016. Id.
at 16-19. The charge specified that the appellant’s “TE results, considered
together with the other criteria for commissioning, have led your Field Supervisor
to determine that you are not suitable for a commission,” and that, because the
appellant failed to receive her commission by June 27, 2021, she failed to meet a
condition of continued employment. Id. at 17. The appellant did not respond,
and on September 28, 2021, the deciding official sustained the appellant’s
removal effective October 8, 2021. Id. at 13-15.
¶5On October 2, 2021, the appellant filed a formal complaint of discrimination
alleging that agency had, among other things, discriminated against her based on
race and age, and that it had retaliated against her for filing an informal Equal
Employment Opportunity (EEO) complaint on July 6, 2021. IAF, Tab 1 at 13.
On May 24, 2022, after investigation, the appellant received a Final Agency
Decision (FAD) that found that she did not prove that she was subjected to
discrimination based on race, age, or retaliation. Id. at 4, 13-25. The appellant
subsequently filed the instant timely Board appeal challenging her removal and
the agency’s failure to recommend her for commissioning and raising the
2 The agency’s policy states that any score below 70 falls into the “Low band,” scores
from 70 to 74 fall into the “Mid band,” and scores of 75 or higher fall into the “High
band.” See IAF, Tab 7 at 24.3
affirmative defenses of disparate treatment discrimination based on her race and
age and reprisal for prior EEO activity.3 Id. at 4; IAF, Tab 18, Tab 20 at 5-9.
The administrative judge issued an order informing the appellant how to prove
her affirmative defenses, IAF, Tab 19, and an order setting forth the burden of
proof and elements for the agency’s charge of failure to maintain a condition of
continued employment, IAF, Tab 23 at 2.
¶6After holding the requested hearing, the administrative judge issued an
initial decision affirming the agency’s removal action. IAF, Tab 28, Initial
Decision (ID) at 1, 12. The administrative judge sustained the charge because he
found that commissioning was a condition of the appellant’s continued
employment and that the appellant failed to meet that condition because she did
not achieve a passing score of 70% on her TE. ID at 4-5. He noted that there was
nothing in the record to suggest that the agency’s commissioning requirement was
patently unfair or the result of bad faith and that, even though the agency’s policy
allowed for the possibility that a candidate could receive a commission without
scoring at least 70% on the TE, there was no evidence the agency had ever
commissioned someone without a passing score. ID at 4-5. The administrative
judge found that the appellant did not prove her claims of race and age
discrimination, ID at 5-9, and that she did not show that her removal was in
reprisal for her prior EEO activity, ID at 9-10. Finally, the administrative judge
concluded that the agency proved nexus, ID at 5, and that the penalty of removal
was reasonable, ID at 10-11.
¶7The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. She reasserts that she was not treated as favorably
as another specific employee whom she claims was given additional support and
3 In cases such as this, when an employee files a timely mixed-case complaint with the
agency, and the employing agency issues a FAD on the employee’s discrimination
claims that provides the employee with notice of her right to file an appeal with the
Board, the employee’s Board appeal must be filed with the Board within 30 days of her
receipt of the agency’s resolution or final decision on the discrimination issue.
Montalvo v. U.S. Postal Service , 91 M.S.P.R. 671, ¶ 5 (2002); 29 C.F.R. § 1614.302(d).4
information, and that the administrative judge failed to apply an FDIC regulation
concerning her allegation that this other employee committed a breach of
academic integrity. Id. at 4. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We discern no error in the administrative judge’s finding that the appellant did
not establish her affirmative defense of disparate treatment discrimination based
on her race or age.
¶8On review, the appellant’s arguments concern her affirmative defense of
disparate treatment discrimination based on her race and age. See PFR File,
Tab 1. She claims that a male colleague of a different race and age—who was
commissioned after successfully challenging one the TE test questions, which
pushed his score up to 70%—received additional support and information from a
senior employee that the appellant did not. Id. at 4. The appellant argues that
this alleged information and support enabled her colleague to pass the TE and
remain employed with the agency, and that this behavior was unethical and a
breach of an agency regulation regarding academic integrity. Id. However, the
appellant raised this argument below and the administrative judge properly
resolved it. See IAF, Tab 20 at 7; ID at 7-9. Specifically, in the initial decision
the administrative judge explained that although the appellant appeared “sincere
in her belief” of this version of events, her assertions were belied by the record.
ID at 8-9. The administrative judge noted that the record included an affidavit
from the named senior employee that denied advising the colleague at issue to
appeal a TE test question, and even denied knowledge as to how a candidate
would raise such a challenge. ID at 7-9; see also IAF, Tab 8 at 77-78. The
administrative judge concluded that there was no evidence that the appellant’s
colleague was given an unfair advantage. ID at 9. The appellant’s argument on
review simply disagrees with the administrative judge’s finding and does not
establish a basis for review. Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (discussing that the mere reargument of5
issues already raised and properly resolved by the administrative judge below
does not establish a basis for review).
¶9Although the appellant also asserts in her petition that the administrative
judge failed to apply an agency regulation regarding academic integrity in his
analysis of this issue, the appellant did not make this argument below and thus the
Board need not consider it. PFR File, Tab 1 at 4; Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980) (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). As a result, the appellant’s arguments on review are unavailing.4
Nevertheless, as discussed below, we find that remand is necessary to correct an
error with the administrative judge’s analysis of the charge.
Remand is necessary to properly address whether the agency established its
charge.
¶10The charge of failure to fulfill a condition of employment contains 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 retention in, a particular position. Id.
¶11In this appeal, the condition of employment is a commission with the
agency in Risk Management, Compliance, Resolutions, or Receivership
Management. IAF, Tab 7 at 80. It appears undisputed that a commission is a
requirement for the appellant’s position, and thus, the first element of the charge
is satisfied. See IAF, Tab 5 at 4, Tab 20 at 5-9. Thus, the issue is whether the
second element—that the appellant failed to meet a condition of employment—is
satisfied.
4 The appellant does not challenge the administrative judge’s finding that she did not
establish that her removal was in reprisal for EEO activity, and we discern no error in
that finding. See PFR File, Tab 1.6
¶12In the appellant’s initial appeal filing, she indicated that she was
challenging the agency’s removal decision as well as the agency’s “[f]ailure to
recommend [her] for commissioning.” IAF, Tab 1 at 4. In a later filing, the
appellant again indicated multiple times that she was disputing not only the
agency’s removal decision but its decision not to commission her. See IAF,
Tab 20 at 7-9. As noted above, in the initial decision, the administrative judge
concluded that the agency proved that commissioning was a condition of the
appellant’s continued employment, and that the appellant did not meet this
condition because she did not achieve an overall score of 70% on either of her
attempts of the TE. ID at 4-5.
¶13However, the Board has held that in appeals where a charge of failure to
maintain a condition of employment is based on the employing agency’s
withdrawing or revoking its certification or other approval of the employee’s
fitness or other qualifications to hold her position, the Board’s authority generally
extends to review of the merits of that withdrawal or revocation. Adams v.
Department of the Army , 105 M.S.P.R. 50, ¶¶ 10, 19 (2007), aff’d, 273 F. App’x
947 (Fed. Cir. 2008). In conducting that review, the Board determines whether,
under the circumstances, the agency acted reasonably in denying the required
certification or approval. See id., ¶ 19. In Adams, for example, the agency
suspended the appellant’s computer access and then removed him for failure to
maintain access to the agency’s computer system. Id., ¶ 6. Although the agency
in that appeal argued that the Board lacked the authority to review the merits of
the decision to suspend computer access because it was not an appealable adverse
action, the Board found that, when a removal is based on the failure to possess a
certification or similar qualification, it has the authority to review the merits of7
the agency’s revocation of the certification or similar qualification necessary for
the employee to hold his position.5, 6 Id., ¶¶ 9-10, 19.
¶14Although this case does not involve a situation where the agency
specifically “withdrew” or “revoked” a necessary certification, the agency here
explicitly controlled whether or not the appellant received a commission, and thus
the principle discussed in Adams is still applicable. See IAF, Tab 8 at 270.
Specifically, as noted above, the agency’s Examiner Training and Development
policy provides that an agency RD determines whether to promote a
pre-commissioned examiner to a commissioned examiner based on the
consideration of various factors, including employee performance and a
recommendation from the employee’s Field Supervisor. Id. The policy also
provides for RD discretion to commission candidates who, like the appellant, did
not score 70% or higher on the TE. Id. at 272. As a result, the agency’s policy
provides that the decision to promote a candidate to a commissioned examiner is
up to agency officials, based objective, subjective, and discretionary factors. Id.
at 270-72. Because of this, the agency’s charge of failure to maintain a continued
condition of employment here was thus based on its own approval of the
appellant’s fitness or other qualifications to commission her, and therefore the
principle discussed in Adams is relevant. Indeed, Adams is particularly pertinent
5 The certification at issue in this appeal and in the appeals discussed in this decision do
not involve national security determinations, which the Board lacks authority to review.
Adams, 105 M.S.P.R. 50, ¶ 11; see Department of the Navy v. Egan , 484 U.S. 518,
530-31 (1988).
6 The Board has followed the principle applied in Adams in other cases as well. See,
e.g., Jacobs v. Department of the Army , 62 M.S.P.R. 688, 694-95 (1994) (reviewing a
security guard’s disqualification from the agency’s Chemical Personnel Reliability
Program based on his alleged misconduct); McGillivray v. Federal Emergency
Management Agency , 58 M.S.P.R. 398, 402 (1993) (finding that the Board had the
authority to consider the reasons underlying the agency’s decision to revoke the
appellant’s procurement authority); Siegert v. Department of the Army , 38 M.S.P.R.
684, 686-88, 691 (1988) (finding that the Board had the authority to review the actions
of the agency credentialing committee and remanding the appeal to the administrative
judge to address that issue). 8
here where the appellant’s Field Supervisor recommended that the appellant not
be promoted to a commissioned examiner, IAF, Tab 7 at 21-22, and proposed her
removal because he determined that the appellant was “not suitable for a
commission,” id. at 17. Consequently, given this precedent, and because the
appellant challenged the merits of the agency’s decision not to commission her,
the administrative judge should have considered the merits of the agency’s
decision not to commission the appellant and whether it was reasonable. See
Adams, 105 M.S.P.R. 50, ¶ 19.
¶15Accordingly, because the administrative judge failed to fully identify the
issues in this appeal, and the parties did not have the opportunity to fully develop
the record on these issues, remand is required. On remand, the administrative
judge shall afford the parties the opportunity to conduct discovery and submit
additional evidence and argument. The administrative judge shall hold a
supplemental hearing, if requested by the appellant, and shall issue a new initial
decision addressing the agency’s charge, nexus, and penalty. The administrative
judge may, as appropriate, adopt his previous findings regarding the appellant’s
affirmative defenses. However, if the argument or evidence on remand regarding
whether the agency established the charge affects the administrative judge’s
analysis of the appellant’s affirmative defenses, he 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) (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 legal reasoning, as well as the authorities on which that reasoning rests). 9
ORDER
¶16For the reasons discussed above, we remand this case to the Washington
regional office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Caracciolo_RhondaDC-0432-22-0466-I-1_Remand_Order.pdf | 2024-08-07 | RHONDA CARACCIOLO v. FEDERAL DEPOSIT INSURANCE CORPORATION, MSPB Docket No. DC-0432-22-0466-I-1, August 7, 2024 | DC-0432-22-0466-I-1 | NP |
757 | https://www.mspb.gov/decisions/nonprecedential/Davie_Olivia_C_SF-0831-18-0327-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD E. DAVIE,1
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-18-0327-I-1
DATE: August 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Olivia C. Davie , Apple Valley, California, for the appellant.
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 that
dismissed her late husband’s Board appeal of an Office of Personnel Management
1 Pursuant to 5 C.F.R. § 1201.35(a) and for the reasons set forth herein, the Board
substitutes Olivia C. Davie for the appellant. Mrs. Davie will herein be referred to as
“the appellant.”
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
(OPM) final decision as untimely filed. 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
On December 7, 2017, OPM issued a final decision denying the request of
the appellant’s husband, Harold E. Davie, to elect a survivor annuity benefit
under the Civil Service Retirement System (CSRS). Initial Appeal File (IAF),
Tab 6 at 7-8. OPM’s final decision notice advised that a Board appeal could be
filed contesting the disposition within 30 calendar days after the date of the
decision or 30 calendar days after receipt of the decision, whichever was later.
Id. at 8; see 5 C.F.R. § 1201.22(b). Mr. Davie received OPM’s final decision on
December 13, 2017, and filed his Board appeal on February 10, 2018. IAF, Tab 1
at 1, Tab 6 at 12.
Because Mr. Davie’s Board appeal appeared to be untimely filed, the
administrative judge issued an order providing Mr. Davie with his burden of
proof on timeliness. IAF, Tab 4. Mr. Davie never responded to the order. On
April 18, 2018, the administrative judge issued an initial decision dismissing2
Mr. Davie’s Board appeal as untimely filed without good cause shown. IAF,
Tab 7, Initial Decision (ID).
On May 14, 2018, Mr. Davie requested an extension of time to file a
petition for review of the initial decision with the Board. Petition for Review
(PFR) File, Tab 1 at 4. The Office of the Clerk of the Board granted this request
and set June 22, 2018, as Mr. Davie’s deadline to file any such petition. PFR
File, Tab 2 at 1. On December 12, 2018, the appellant filed a motion to substitute
herself as the appellant, along with a petition for review of the initial decision.
PFR File, Tab 3. The Office of the Clerk of the Board sent a letter to the
appellant notifying her that a petition for review that appears to be untimely must
be accompanied by a motion for waiver of the time limit and a statement
outlining why good cause existed for her late filing. PFR File, Tab 4 at 2-3. In
response, the appellant stated that her delay was due to her husband, as he became
ill in June 2018, culminating in his death on June 26, 2018. PFR File, Tab 7
at 6-8.
DISCUSSION OF ARGUMENTS ON REVIEW
Mrs. Davie is the appropriate party to substitute as the appellant.
The Board’s regulations provide for substitution of a proper party in the
event of the death of an appellant. 5 C.F.R. § 1201.35. Substitution is only
permitted if the interests of the appellant are not terminated upon his death.
5 C.F.R. § 1201.35(a). Here, the original appellant, Mr. Davie, became ill and
died in June 2018 during the adjudication of this petition for review. PFR File,
Tab 7 at 6, 9. The Board appeal in this case contests an OPM final decision that
rejected Mr. Davie’s attempt to elect a survivor annuity benefit. IAF, Tab 2. The
appellant, as Mr. Davie’s surviving spouse, would be entitled to any CSRS
survivor annuity elected by Mr. Davie under 5 U.S.C. § 8341(b) if OPM’s final
decision at issue is ever reversed. See Torallo v. Office of Personnel
Management, 56 M.S.P.R. 294, 296-97 (1993) (explaining that upon the death of3
an annuitant who elected survivor benefits, the surviving spouse is entitled to
receive the survivor annuity). We therefore find that Mr. Davie’s interests under
5 U.S.C. § 8341 did not terminate upon his death, making Mrs. Davie a proper
party for substitution in this appeal. Id. at 296-97 (finding that the surviving
spouse was the proper party for substitution where the original appellant’s
interests regarding a survivor annuity under 5 U.S.C. § 8341 did not terminate
upon his death).
Motions to substitute must be filed with the Board within 90 days after the
death of a party. 5 C.F.R. § 1201.35(b). The appellant filed her motion to
substitute on December 12, 2018, which was more than 90 days after the death of
her husband. PFR File, Tab 3 at 2-4. However, in the absence of a timely
substitution of a party, the processing of an appeal may continue if the interests
of the proper party will not be prejudiced. 5 C.F.R. § 1201.35(c). No such
prejudice exists here; thus, we find it appropriate to continue with the processing
of this appeal.
The administrative judge properly dismissed the initial appeal as untimely filed.
To be timely, an appeal to the Board must be filed no later than 30 days
after the effective date of the action being challenged or 30 days after receipt of
the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b). The appellant
bears the burden of proof on the issue of timeliness by a preponderance of the
evidence.3 See Smith v. Office of Personnel Management , 117 M.S.P.R. 527, ¶ 5
(2012); 5 C.F.R. § 1201.56(b)(2)(i)(B). As the administrative judge correctly
found, Mr. Davie filed the initial appeal 29 days after the filing deadline. ID at 3.
The administrative judge considered whether Mr. Davie had shown good cause
for the delay, but she correctly determined that he did not show that
3 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
circumstances beyond his control precluded him from timely filing the appeal.4
ID at 4. Thus, we find that the administrative judge properly dismissed the initial
appeal as untimely filed, and we affirm the initial decision.5
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.
4 We note that although Mr. Davie did not respond to the administrative judge’s
timeliness order, he was subsequently able to timely request an extension of the
deadline to file his petition for review. PFR File, Tab 1.
5 Because we agree with the administrative judge that the initial appeal was untimely
filed without good cause shown, we decline to address the timeliness of the petition for
review. We recognize that the appellant was dealing with the illness and death of her
husband, which would justify at least some delay in filing a petition for review. We
need not decide whether it would justify the entire 6-month delay in this case.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.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. 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 | Davie_Olivia_C_SF-0831-18-0327-I-1_Final_Order.pdf | 2024-08-07 | null | SF-0831-18-0327-I-1 | NP |
758 | https://www.mspb.gov/decisions/nonprecedential/Daniels_HodariSF-0831-20-0727-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HODARI DANIELS,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-0831-20-0727-I-1
DATE: August 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Herb Thomas , Alameda, California, for the appellant.
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 the appeal for lack of jurisdiction, and to the extent the Board has
jurisdiction based on the January 2, 2019 Office of Personnel Management
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
(OPM) reconsideration decision,2 as barred by the doctrines of res judicata and/or
collateral estoppel. 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 appeal is barred by res
judicata, we AFFIRM the initial decision.
On review, the appellant asserts that he filed another application with
OPM3 for retirement benefits as a dependent child incapable of self-support with
new evidence sometime after the adjudication of his prior Board appeal but OPM
refused to review it and stated that its January 2, 2019 reconsideration decision
was final. Petition for Review (PFR) File, Tab 1 at 3. The administrative judge
noted that the appellant did not provide documents in support of his claim, even
after a second show cause order explicitly directed him to do so. Initial Appeal
File (IAF), Tab 9, Initial Decision (ID) at 7; IAF, Tab 6 at 1-2. The
administrative judge found that a reference to a prior final decision and prior
2 As set forth in the initial decision, the OPM reconsideration decision was incorrectly
dated January 2, 2018, and it should have been dated January 2, 2019. Initial Appeal
File, Tab 9, Initial Decision at 4; IAF, Tab 1 at 12.
3 In his response to the show cause order, the appellant identified the date of this
application as July 30, 2019. IAF, Tab 5 at 4.2
litigation does not constitute a new final decision that is appealable to the Board.
ID at 7. Thus, the administrative judge dismissed for lack of jurisdiction the
appellant’s claim of OPM’s refusal to consider the new evidence he submitted
with another application. ID at 7. We discern no reason to disturb the
administrative judge’s finding in this regard.
The appellant also asserts that the doctrine res judicata is inapplicable.
PFR File, Tab 1 at 4. Under the doctrine of res judicata, a valid, final judgment
on the merits of an action bars a second action involving the same parties or their
privies based on the same cause of action. Jennings v. Social Security
Administration, 123 M.S.P.R. 577, ¶ 25 (2016). Thus, res judicata prohibits
parties from relitigating issues that were, or could have been, raised in the prior
action, and is applicable if the following criteria are met: (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.
Contrary to the administrative judge’s conclusion, the criteria for res
judicata were not met in this appeal. ID at 8. The prior decision to which the
administrative judge gave preclusive effect in this case was the decision
affirming OPM’s dismissal of the appellant’s request for reconsideration as
untimely. Daniels v. Office of Personnel Management , MSPB Docket No.
SF-0831-19-0223-I-1, Initial Decision (June 17, 2019). Res judicata is generally
inapplicable when the merits of an agency action are not examined. Vargo v U.S.
Postal Service, 66 M.S.P.R. 156, 159 (1994). A decision concerning the
timeliness of a request for reconsideration before OPM is not a decision on the
merits. Muyco v. Office of Personnel Management , 114 M.S.P.R. 694, ¶ 10
(2010). We therefore find that the instant appeal is not barred by res judicata,
and we vacate the administrative judge’s finding on that issue.
However, unlike res judicata, a decision on the merits is not necessary for a
finding of collateral estoppel. Peartree v. U.S. Postal Service , 66 M.S.P.R. 332,3
341 (1995). Collateral estoppel is appropriate when the following conditions 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, either as a party to the earlier action or as one whose
interests were otherwise fully represented in that 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).
The administrative judge correctly found that, even if res judicata was
inapplicable, the appeal is barred by collateral estoppel. ID at 9. Specifically, to
the extent the Board has jurisdiction based on the January 2, 2019 OPM
reconsideration decision, the doctrine of collateral estoppel precludes the
appellant from relitigating the prior decision to affirm the OPM reconsideration
decision finding his reconsideration request untimely filed. ID at 9-10.
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
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
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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.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 | Daniels_HodariSF-0831-20-0727-I-1_Final_Order.pdf | 2024-08-07 | HODARI DANIELS v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-0831-20-0727-I-1, August 7, 2024 | SF-0831-20-0727-I-1 | NP |
759 | https://www.mspb.gov/decisions/nonprecedential/Ostler_KorreyDE-0752-19-0205-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KORREY OSTLER,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
DE-0752-19-0205-I-1
DATE: August 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Korrey Ostler , Salt Lake City, Utah, pro se.
Melinda Varszeg i, Esquire, Sandy, Utah, 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 termination appeal for lack of jurisdiction. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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 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
From January 7, 2017, to January 1, 2018, the appellant, a preference
eligible, held a temporary City Carrier Assistant position in the excepted service.
Initial Appeal File (IAF), Tab 6 at 32-33. Following a 6-day break in service, on
January 7, 2018, the agency appointed him to another excepted -service temporary
City Carrier Assistant position. Id. at 31. On November 7, 2018, the agency
proposed his removal for unacceptable conduct and afforded him an opportunity
to respond, which he did in writing on November 11, 2018. Id. at 8-15. While
the proposed removal was pending, the agency converted the appellant from a
temporary position to a career Letter Carrier position effective November 24,
2018. IAF, Tab 7 at 5. On November 28, 2018, the agency issued a decision
letter affirming the charge and finding termination warranted. IAF, Tab 6 at 5-7.
The decision letter indicated that, “[s]ince a grievance has been filed on your
behalf, the removal is deferred until your appeal rights have been exhausted.” Id.
at 6. A Postal Service (PS) Form 50 processed on March 8, 2019, reflects that the
appellant’s termination became effective on December 21, 2018. Id. at 4. 2
The appellant filed a Board appeal challenging his termination and alleging
discrimination and prohibited personnel practices. IAF, Tab 1. The agency
moved to dismiss the appeal for lack of jurisdiction, arguing that the appellant
was not an employee with Board appeal rights because he did not have at least
1 year of current continuous service. IAF, Tab 5 at 8. In response to the
administrative judge’s order on jurisdiction, the appellant appeared to argue that
he was not separated until March 2019 and that he therefore had more than 1 year
of current continuous service. IAF, Tabs 8, 11, 16. Without holding the
appellant’s requested hearing, the administrative judge issued an initial decision
finding that the Board lacked jurisdiction over the termination appeal because, at
the time of his termination, the appellant did not have 1 year of continuous
service in the same or similar positions as to be entitled to appeal rights to the
Board. IAF, Tab 18, Initial Decision (ID) at 2-3. She further found that, absent
an otherwise appealable action, the Board lacked jurisdiction to consider the
appellant’s discrimination and prohibited personnel practices claims. ID at 3-4.
The appellant has filed a petition for review of the initial decision, and the
agency has responded. Petition for Review (PFR) File, Tabs 1, 3
ANALYSIS
Only an “employee,” as defined under 5 U.S.C. chapter 75, can appeal an
adverse action to the Board. See 5 U.S.C. §§ 7511(a)(1), 7513(d); Winns v. U.S.
Postal Service, 124 M.S.P.R. 113, ¶ 8 (2017), aff’d sub nom. Williams v. Merit
Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018). Pursuant to 5 U.S.C.
§ 7511(a)(1)(B), which concerns preference-eligible employees in the excepted
service, an employee with the right to appeal to the Board includes a
preference-eligible U.S. Postal Service employee who has completed “1 year of
current, continuous service” in the same or similar positions.2 5 U.S.C. § 7511(a)
2 Employees of the U.S. Postal Service also may appeal adverse actions to the Board
under 5 U.S.C. chapter 75 if they are management or supervisory employees, or
employees engaged in personnel work in other than a purely nonconfidential clerical3
(1)(B)(ii); see 5 U.S.C. § 7511(b)(8); Winns, 124 M.S.P.R. 113, ¶ 8. “Current
continuous service” means service immediately prior to the action at issue
without a break in service of a workday. 5 C.F.R. § 752.402; see Winns,
124 M.S.P.R. 113, ¶¶ 8, 14 (holding that the ordinary meaning of “current
continuous service” in section 7511(a)(1)(B) precludes breaks in service). The
appellant bears the burden of proving by preponderant evidence that his appeal is
within the Board’s jurisdiction.3 5 C.F.R. § 1201.56(b)(2)(i)(A).
Here, it is undisputed that the appellant is a preference eligible and that the
period of service at issue in this appeal began on January 7, 2018, when the
agency appointed him to the temporary City Carrier Assistant position.4 IAF,
Tab 6 at 31. The administrative judge found that he did not meet the definition of
an employee with chapter 75 appeal rights because, although the appellant was a
preference-eligible Postal Service employee in the excepted service, he did not
have 1 year of current continuous service at the time of his termination. ID
at 2-3. On review, the appellant argues, as he did below, that the agency did not
terminate him until March 2019 and that he therefore completed 1 year of current
continuous service prior to his termination. PFR File, Tab 1. In support of this
contention, the appellant points to the following: PS Forms 50 processed in
February and March 2019, IAF, Tab 6 at 4, Tab 11 at 5; “check stubs” dated
every 2 weeks between December 2018 and March 2019 showing his address and
capacity. 5 U.S.C. § 7511(b)(8); 39 U.S.C. § 1005(a)(4)(A)(ii)(I); Winns, 124 M.S.P.R.
113, ¶ 8 n. 4. The appellant has not alleged, and the record does not reflect, that he was
employed in any of these capacities.
3 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 As noted above, there was a 6-day break in service between the end of the appellant’s
first appointment and the beginning of the appointment immediately preceding the
termination at issue in this appeal. IAF, Tab 6 at 31-33. In light of this break in
service, the appellant’s service in his first appointment cannot be tacked onto his
current service for purposes of satisfying the 1 year of current continuous service
requirement, even if it was in the same or a similar position. See 5 U.S.C. § 7511(a)(1)
(B)(ii); 5 C.F.R. § 752.402.4
a return address for the agency but no information regarding pay or benefits, IAF,
Tab 16 at 1-3; a March 8, 2019 letter from the agency explaining that, once his
separation was updated to the payroll system, he would receive payment for his
earned annual leave balance, i.e., “terminal leave,” and for any work he
performed during his final pay period, IAF, Tab 11 at 6; and a detailed paystub
from March 22, 2019, reflecting a lump sum terminal leave payment for 24 hours,
PFR File, Tab 1 at 3.5
The Board has recognized that, under a practice that appears to be unique
to the U.S. Postal Service, when a bargaining unit employee grieves a removal,
the agency ordinarily carries the employee on the rolls beyond the date that the
removal was set to become effective until the grievance is resolved. McGarrity v.
U.S. Postal Service, 103 M.S.P.R. 610, ¶ 2 (2006). This appears to be the case
here. As noted above, the decision letter issued on November 28, 2018, indicates
that “[s]ince a grievance has been filed on your behalf, the removal is deferred
until your appeal rights have been exhausted.” IAF, Tab 6 at 6. In addition, the
agency states on review that, “[a]fter the grievance process was completed and
the appeal period had passed without an appeal, [the agency] cut the Form 50
separating Complainant effective December 21, 2018.” PFR File, Tab 3 at 4.
Generally, when the Postal Service retains an appellant on its rolls in a
non-pay status pending the final disposition of a grievance, the Board views the
employee’s termination as constructively effective on the effective date in the
decision letter, not the date when the employee is eventually separated from the
agency’s rolls. McNeil v. U.S. Postal Service, 98 M.S.P.R. 18, ¶ 9 (2004). While
the November 28, 2018 decision letter here did not specify an effective date for
5 The appellant submitted the March 22, 2019 paystub for the first time on review. PFR
File, Tab 1. Under 5 C.F.R. § 1201.115, the Board will generally not consider evidence
submitted for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence. Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980 ). Although the appellant has not shown
that he could not have submitted the March 22, 2019 paystub before the record closed
below despite his due diligence, we find it appropriate to consider this evidence under
the circumstances of this case.5
the appellant’s termination, it informed him that the deciding official determined
that his termination was warranted and that he had the right to challenge it by
filing a Board appeal or equal employment opportunity complaint. IAF, Tab 6
at 5-6. Thus, upon the issuance of the decision letter, the appellant’s
termination was conclusive, final, and effective in the sense that it was subject
only to reversal or modification by settlement, appeal, or grievance. See
Benjamin v. U.S. Postal Service, 29 M.S.P.R. 555, 557 (1986). We note that the
March 8, 2019 PS Form 50 reflects that the appellant was terminated from his
position effective December 21, 2018, which the agency asserts on review is
when the grievance process was completed, and that it was his last day in pay
status.6 IAF, Tab 6 at 4; PFR File, Tab 3 at 4. We need not resolve, however,
whether the appellant’s termination was effective upon the issuance of the
November 28, 2018 decision letter or, as the PS Form 50 reflects, upon the
completion of the grievance process on December 21, 2018, because he had less
than 1 year of current continuous service on both dates. See 5 U.S.C. § 7511(a)
(1)(B)(ii).
As noted above, in arguing that he was not terminated until March 2019,
the appellant relies on documentation generated after December 21, 2018,
including the PS Forms 50, partial paystubs, a letter regarding terminal leave and
his final paycheck, and the March 22, 2019 paystub reflecting payment for
24 hours of terminal leave. IAF, Tab 11 at 5-6, Tab 16 at 1-3; PFR File, Tab 1
at 3. These documents, however, do not establish that the appellant was an active
employee or in a pay or duty status at any time after December 21, 2018. Rather,
they show only that the agency took ministerial steps to remove him from the
rolls in the months after the issuance of the decision letter and the completion of
the grievance process. The delayed administrative act of removing him from the
6 In addition, a February 28, 2019 PS Form 50 purports to cancel “[Notice of Action
(NOA)] 925” in order to process the appellant’s separation effective December 21,
2018. IAF, Tab 11 at 5. It is unclear what personnel action NOA 925 refers to, and the
parties have not offered any explanation.6
agency’s rolls does not change the fact that his removal was effective either upon
the issuance of the decision letter on November 28, 2018, or on December 21,
2018, which the agency contends was his last day in pay status. See Hopkins v.
U.S. Postal Service, 108 M.S.P.R. 25, ¶¶ 9-10 (2008) (explaining that, when the
Postal Service maintains an employee on the rolls in non-pay status until the final
disposition of a grievance, the delayed administrative act of removing him from
the rolls does not change the fact that the removal was effective as of the date set
forth in the decision letter).
In light of the foregoing, we find no basis to disturb the administrative
judge’s determination that the appellant did not have 1 year of current continuous
service at the time of his termination and that he therefore does not meet the
definition of an employee with the right to appeal his termination to the Board
under section 7511(a)(1)(B). Thus, she properly dismissed this appeal for lack of
jurisdiction.
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.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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.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. 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 | Ostler_KorreyDE-0752-19-0205-I-1_Final_Order.pdf | 2024-08-07 | KORREY OSTLER v. UNITED STATES POSTAL SERVICE, MSPB Docket No. DE-0752-19-0205-I-1, August 7, 2024 | DE-0752-19-0205-I-1 | NP |
760 | https://www.mspb.gov/decisions/nonprecedential/Phillips_D'Angelo_M_CH-0752-20-0288-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
D’ANGELO M. PHILLIPS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
CH-0752-20-0288-I-1
DATE: August 7, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
D’Angelo M. Phillips , Cincinnati, Ohio, pro se.
Mark Manta , Esquire, Philadelphia, Pennsylvania, 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 pursuant to 5 U.S.C. chapter 75 based on one charge of
improper conduct. On petition for review, the appellant alleges the following:
(1) there was a “conflict of interest” with a witness; (2) the penalty of removal
was unreasonable; and (3) the agency committed harmful procedural error.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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 (PFR) File, Tab 1 at 2-5. 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 asserts that the “main witness interviewed was a relative
which is [a] conflict of interest”; however, he does not identify either (1) the
witness to which he refers or (2) the familial connection at issue. PFR File, Tab 1
at 4; see Tines v. Department of the Air 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).
Moreover, the appellant does not explain how any purported conflict of interest
impacted the outcome of his appeal; indeed, the appellant stipulated to the
entirety of the facts underlying the agency’s charge against him. Initial Appeal
File (IAF), Tab 15 at 1, 3. Thus, a different outcome is not warranted.
The appellant contends that the penalty of removal was unreasonable and
that the administrative judge should have mitigated the penalty in light of various
factors, including his work ethic. PFR File, Tab 1 at 2, 4-5. However, we discern
no basis to disturb the administrative judge’s reasoned conclusion that the
agency-imposed penalty of removal was within the tolerable limits of2
reasonableness. IAF, Tab 20, Initial Decision (ID) at 5-9; see Douglas v.
Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981). Indeed, both the U.S.
Court of Appeals for the Federal Circuit and the Board have repeatedly found that
removal is a reasonable penalty for threatening coworkers with bodily harm, even
when there are mitigating factors. Chatman v. Department of the Army ,
73 M.S.P.R. 582, 589 (1997).
Finally, the appellant seemingly challenges the administrative judge’s
conclusion that he failed to prove that the agency committed harmful procedural
error. PFR File, Tab 1 at 2-4. However, we discern no basis to disturb the
administrative judge’s reasoned conclusion that the appellant failed to identify
any procedural error on the part of the agency, much less an error that would have
caused the agency to reach a different conclusion. ID at 9-11; see Pumphrey v.
Department of Defense , 122 M.S.P.R. 186, ¶ 10 (2015); 5 C.F.R. § 1201.4(r).
Accordingly, we affirm the initial decision.
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
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
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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.
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 | Phillips_D'Angelo_M_CH-0752-20-0288-I-1_Final_Order.pdf | 2024-08-07 | null | CH-0752-20-0288-I-1 | NP |
761 | https://www.mspb.gov/decisions/nonprecedential/Miller_DerrickPH-0752-18-0231-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DERRICK MILLER,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
PH-0752-18-0231-I-2
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Shaun Yancey , Atlanta, Georgia, for the appellant.
Victoria R. Gulasarian and Joseph Guerra , 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
The appellant has filed a petition for review of the initial decision which
affirmed his removal. For the reasons set forth below, the appellant’s petition for
review is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
In an initial decision issued on September 27, 2019, the administrative
judge affirmed the agency’s action removing the appellant from his position for
being absent without leave for over 4 months. Miller v. Department of Defense ,
MSPB Docket No. PH-0752-18-0231-2, Appeal File, Tab 24, Initial Decision
(ID). The administrative judge notified the parties that the initial decision would
become final on November 1, 2019, if neither party filed a petition for review.
ID at 13.
On October 31, 2019, the appellant submitted a request for an extension of
time to file his petition for review, citing technical issues with his personal
server. Petition for Review (PFR) File, Tab 1 at 3. The Board granted an
extension until November 12, 2019. PFR File, Tab 2. On December 12, 2019,
the appellant filed his petition for review, PFR File, Tab 3, and on the same day,
and on the following day, he submitted attachments to his petition. PFR File,
Tabs 4-5. The Clerk of the Board notified the appellant that the petition for
review appeared to be untimely filed because it was not filed by
November 12, 2019. PFR File, Tab 6. The Clerk afforded the appellant an
opportunity to file a motion to accept his filing as timely and/or to waive the time
limit for good cause, and stated that such a motion must be accompanied by a
statement under penalty of perjury, or an affidavit, postmarked, if mailed, or sent
by facsimile, on or before December 28, 2019, id. at 2. On December 29, 2019,2
the appellant filed a response with attachments. PFR File, Tabs 8, 9.
The agency moved that the petition for review be dismissed as untimely filed with
no good cause shown. PFR File, Tabs 7, 10.
2 Contrary to the agency’s claim, PFR File, Tab 10 at 6, the appellant’s
December 29, 2019 response was not untimely. It was due on December 28, 2019,
but, because that was a Saturday, the appellant’s response was not due until
December 30, 2019. 5 C.F.R. § 1201.23.2
ANALYSIS
The Board’s regulations require that a petition for review be filed within
35 days after the date of issuance of the initial decision, or, if a party shows that
he received the initial decision more than 5 days after it was issued, within
30 days after his receipt of the initial decision.3 Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). As stated in the
initial decision, the petition for review was due on November 1, 2019, ID at 13,
but the Clerk granted the appellant an extension until November 12, 2019.
PFR File, Tab 2. The appellant’s petition for review, filed on December 12,
2019, was 30 days late. PFR File, Tab 3.
The Board will waive the filing deadline for a petition for review upon a
showing of good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4;
5 C.F.R. § 1201.114(g). The party who submits an untimely petition for review
has the burden of establishing good cause for the untimely filing by showing that
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 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).
3 We have considered the appellant’s statement in his petition for review that he
received the September 27, 2019 initial decision on November 12, 2019. PFR File,
Tab 3 at 3. However, the fact that he filed a request for an extension on
October 31, 2019, demonstrates that he was aware at that time of the filing deadline as
set forth in the initial decision.3
In applying these factors to this case, we first find that, although the
appellant is pro se, a 1-month delay is not insignificant. See, e.g., Dow v.
Department of Homeland Security , 109 M.S.P.R. 633, ¶ 9 (2008); Crook v. U.S.
Postal Service, 108 M.S.P.R. 553, ¶ 6 (2008). The appellant offers two
explanations for why he missed the filing deadline. The first is that he was
experiencing computer and networking issues with his internet service and
modem server platforms. PFR File, Tab 8 at 3. He has submitted notification
from Verizon which appears to indicate that his home Wi-Fi and router were
upgraded on December 12, 2019, id. at 21, and he states that “I am at their mercy
[presumably, Verizon and Hewlett Packard] to fix the issues,” and that “I do not
know how to do things here.” PFR File, Tab 9 at 3. Even if so, the appellant did
not explain why, for example, he could not have timely submitted his petition
using a computer other than his own. Nor has he explained why, even though he
is an e-filer, he could not have filed his submission by non-electronic means.
5 C.F.R. § 1201.24(f). Moreover, he did not explain why he could not have
timely submitted a second request for an extension of time in which to file his
petition for review. We find, therefore, that, despite his computer difficulties, the
appellant has not shown that he exercised due diligence and ordinary prudence
under the circumstances.4
The second explanation the appellant offers is that he is under medications
that have side effects which hindered his ability to remember and complete tasks
involved in submitting required information. PFR File, Tab 8 at 3. The Clerk’s
order specifically advised the appellant that, if he was alleging that his health
affected his ability to meet filing deadlines, he must demonstrate that he suffered
from an illness that affected his ability to file on time, and that he must:
(1) identify the time period during which he suffered from the illness; (2) submit
medical or other evidence showing that he suffered from the alleged illness
4 We reject the appellant’s statement that he understood that he had 60 days to submit
his petition, PFR File, Tab 9 at 3. Any such assumption is contrary to the clear
language of the Board’s order granting the filing extension, PFR File, Tab 2. 4
during that time period; and (3) explain how the illness prevented him from
timely filing his petition for review. PFR File, Tab 6 at 7 n.1. The appellant did
not identify the time period during which he suffered from any particular illness
and submitted no medical evidence showing that he suffered from such an illness.
Rather, he submitted only lengthy information sheets prepared by drug companies
for four medications, two anti-depressants, Duloxetine and Trazodone
Hydrochloride, and two anti-epileptic drugs, Lyrica and Gabapentin, id. at 4-20.
According to these information sheets, in addition to a host of physical reactions,
these drugs can affect the ability to think clearly, id. at 6, and can, among other
things, cause confusion, id. at 12, sleepiness, and dizziness, id. at 15, 19.
However, the documents do not constitute preponderant evidence showing that
the appellant was impaired by any medical condition during the filing period that
prevented him from timely filing his petition for review so as to constitute good
cause for waiving the time limit. Cf. Smith v. Office of Personnel Management ,
117 M.S.P.R. 527, ¶¶ 7-9 (2012) (finding that the appellant’s medical evidence,
including reports from his psychiatrist, specifically explained that her medical
conditions substantially impaired her ability to perform certain tasks directly
related to the ability of an individual to timely follow instructions regarding the
filing of an appeal with the Board or to seek an extension of time to file).
In sum, the appellant has not shown that he exercised due diligence or
ordinary prudence under the circumstances, and his petition for review must be
dismissed as untimely filed. Palermo, 120 M.S.P.R. 694, ¶ 4.
ORDER
Accordingly, we dismiss the petition for review as untimely filed with no
good cause shown. This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for review. The initial decision
remains the final decision of the Board regarding the removal appeal.5
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.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.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. 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 | Miller_DerrickPH-0752-18-0231-I-2_Final_Order.pdf | 2024-08-06 | DERRICK MILLER v. DEPARTMENT OF DEFENSE, MSPB Docket No. PH-0752-18-0231-I-2, August 6, 2024 | PH-0752-18-0231-I-2 | NP |
762 | https://www.mspb.gov/decisions/nonprecedential/Schuler_FrederickDE-1221-20-0171-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERICK SCHULER,
Appellant,
v.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT,
Agency.DOCKET NUMBER
DE-1221-20-0171-W-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Frederick Schuler , Aurora, Colorado, pro se.
Colin J. Ratterman and Nicole A. Allard , Esquire, Denver, Colorado, for
the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
*Member Kerner recused himself and did not participate in the adjudication
of this appeal
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his individual right of action (IRA) appeal for lack of jurisdiction.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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
analyze the appellant’s argument that his disclosures regarding agency policy
evidence gross mismanagement, an abuse of authority, and a gross waste of funds,
to supplement the contributing factor analysis, and to address a disclosure raised
for the first time on review, we AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
The appellant is a Review Appraiser for the Processing and Underwriting
Division (PUD) of the agency’s Denver Homeownership Center in Denver,
Colorado. Initial Appeal File (IAF), Tab 1 at 1, Tab 29 at 23. His duties include
responding to service request calls from lenders, borrowers, and appraisers with
questions about Federal Housing Authority (FHA) policy or needing assistance
with FHA systems. IAF, Tab 9 at 6, Tab 29 at 20, 23. Some of these requests
come electronically from a call center operated by a contractor via the agency’s
Unified Service Desk (USD) system, in which a service request is called a Client
Relationship Management (CRM) inquiry. IAF, Tab 29 at 20. Unless a caller has2
requested to speak with a specific staff member, the agency assigns CRM
inquiries to PUD staff on a rotating basis. Id.
According to the appellant, over the course of several years he made
“hundreds of disclosures . . . evidenc[ing] misconduct or mismanagement” to
various supervisors, as well as the Office of the Inspector General (OIG), the
Office of Special Counsel (OSC), and the agency’s Equal Employment
Opportunity office (EEO). IAF, Tab 9 at 5. One type of disclosure concerned the
agency’s lack of written policy determinations and certain specific policy
guidance in its Handbook 4000.1, FHA Single Family Housing Policy Handbook,
Condominium Project Approval. IAF, Tab 9 at 9. According to the appellant,
this lack of guidance caused the agency to rely on questionable appraisals in
issuing mortgages that could cost the agency “hundreds of billions of dollars,
should the [United States] economy suffer another crash like the 2008 Housing
Crisis.” Id. at 5.
Another type of disclosure concerned what the appellant identified as
“harassing and abusive” CRM inquiries from the public asking Housing and
Urban Development (HUD) appraisers like him “to provide false HUD policy
determinations and property eligibility determinations.” Id. at 6. He alleged that
agency employees or management were in collusion with these “troll” callers
based on the “topics, frequency, timing, tone and intensity” of the calls compared
to internal agency discussions. Id. at 8-9.
On July 11, 2018, the appellant’s first-level supervisor issued the appellant
a letter of reprimand for disruptive conduct for his allegedly rude and
condescending treatment of external customers. IAF, Tab 10 at 420-22. Within
2 weeks after the letter was issued, the appellant submitted a hotline report to the
agency’s OIG. IAF, Tab 23 at 57-58. On September 25, 2019, the appellant’s
first-level supervisor proposed to suspend the appellant for 14 days based on
charges of conduct unbecoming a Federal employee and failure to follow
instructions. IAF, Tab 9 at 41-55. After the appellant responded, the PUD3
Director, who was the deciding official, sustained both charges and affirmed the
14-day suspension. Id. at 32-40.
Prior to receiving the decision on his 14-day suspension, the appellant filed
a complaint with OSC. IAF, Tab 8 at 12, Tab 9 at 18-19, Tab 21 at 2, 86-115.
He alleged in his complaint, as later amended, that in reprisal for protected
disclosures, the agency issued him the letter of reprimand and 14-day suspension.
IAF, Tab 9 at 93-101. On December 26, 2019, OSC informed the appellant that it
had closed its inquiry into his complaint. Id. at 101. He subsequently filed an
IRA appeal with the Board. IAF, Tab 1.
The administrative judge advised the appellant of his jurisdictional burden
and ordered him to provide evidence and information related to his claim. IAF,
Tab 3. Both parties responded. IAF, Tabs 9-24, 27-30. The administrative judge
then issued an initial decision dismissing the appeal for lack of jurisdiction. IAF,
Tab 31, Initial Decision (ID) at 1-2.
The administrative judge assumed without making a finding that the
appellant exhausted his administrative remedies with OSC. ID at 4. The
administrative judge then found that the appellant failed to nonfrivolously allege
that his disclosures about unclear agency policies and harassing behavior on the
call system were protected under 5 U.S.C. § 2302(b)(8). ID at 5, 8. Specifically,
he reasoned that the appellant’s complaints about the lack of clear policy were
policy disagreements, which are not protected. ID at 8-10. He then found that
the disclosures about harassment by CRM callers were similarly not protected
because the alleged wrongdoing was perpetrated by private callers, not
Government employees. ID at 10-12. To the extent the appellant alleged that the
agency colluded with these callers, the administrative judge found that the
appellant failed to nonfrivolously allege that he reasonably believed the agency
was behind the calls. ID at 12. The administrative judge also found that the
appellant failed to nonfrivolously allege that his EEO complaint was a protected
activity. ID at 13. However, he determined that the appellant nonfrivolously4
alleged that his OIG and OSC activity was protected under 5 U.S.C. § 2302(b)(9)
(C). Id. However, he found that the appellant failed to nonfrivolously allege that
any agency employees involved in his reprimand and 14-day suspension had
knowledge of such protected activity, and thus, the appellant failed to
nonfrivolously allege that the activities were a contributing factor in his
personnel actions. Id.
The appellant has filed a petition for review, disagreeing with the finding
that he failed to nonfrivolously allege that he made protected disclosures.
Petition for Review (PFR) File, Tab 3 at 9-19. He also disagrees that he failed to
nonfrivolously allege that the agency officials involved in the alleged personnel
actions had knowledge of his OIG report and OSC complaint. PFR File, Tab 3
at 19-20. He attaches new documents on review. Id. at 22-37. The agency has
responded to the appellant’s petition for review, and the appellant has replied to
its response. PFR File, Tabs 5, 6.
DISCUSSION OF ARGUMENTS ON REVIEW
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA),
the Board has jurisdiction over an IRA appeal if the appellant has exhausted his
administrative remedies before OSC and makes nonfrivolous allegations that:
(1) he made a protected disclosure described under 5 U.S.C. § 2302(b)(8) or
engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), or (D); and (2) the disclosure or protected activity was a contributing factor
in the agency’s decision to take or fail to take a personnel action as defined by
5 U.S.C. § 2302(a). Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶ 5
(2016). The administrative judge below assumed without finding that the
appellant exhausted his administrative remedies with OSC. ID at 4. The parties
do not challenge this on review. Because we agree with the administrative judge
that the appellant failed to nonfrivolously allege that he made protected
disclosures or engaged in protected activities that were contributing factors in the5
alleged personnel actions, we also find it unnecessary to address the exhaustion
issue.
The administrative judge properly determined that the appellant failed to
nonfrivolously allege that he made protected disclosures.
The appellant on review challenges the administrative judge’s finding that
he failed to nonfrivolously allege that he made protected disclosures. PFR File,
Tab 3 at 9-19. We are unpersuaded.
Protected whistleblowing occurs when an appellant makes a disclosure that
he reasonably believes evidences 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 and safety. 5 U.S.C. § 2302(b)(8); 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 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 actions evidenced a violation of law, rule, or
regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).
Mudd, 120 M.S.P.R. 365, ¶ 5. 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, 1368 (Fed. Cir. 2020).2
2 After the initial decision was issued in this case, the U.S. Court of Appeals for the
Federal Circuit issued its decision in Hessami, 979 F.3d 1362. In Hessami, the court
clarified that at the jurisdictional stage, the Board cannot consider the agency’s
evidence to the extent it contradicts the appellant’s nonfrivolous allegations that he
made a protected disclosure that contributed to a personnel action. Id. at 1367-68; see
Ferdon v. U.S. Postal Service , 60 M.S.P.R. 325, 329 (1994) (explaining that in
determining whether the appellant has made a nonfrivolous allegation of jurisdiction
entitling him to a hearing, the administrative judge may consider the agency’s
documentary submissions; however, to the extent that the agency’s evidence constitutes
mere factual contradiction of the appellant’s otherwise adequate prima facie showing of
jurisdiction, the administrative judge may not weigh evidence and resolve conflicting
assertions of the parties and the agency’s evidence may not be dispositive). Because
the administrative judge did not improperly weigh the evidence in making his6
The agency’s alleged lack of clear policies.
The administrative judge found that the appellant’s disclosures regarding
the lack of clear policy guidance were communications about policy decisions
that did not otherwise evidence wrongdoing covered by the WPEA. ID at 10.
The appellant repeatedly argues on review that his disclosures evidenced gross
mismanagement. PFR File, Tab 3 at 9-15. The statutory protection for
whistleblowers is not a weapon in arguments over policy or a shield for
insubordinate conduct. Webb v. Department of the Interior , 122 M.S.P.R. 248,
¶ 8 (2015). Even under the expanded protections afforded to whistleblowers
under the WPEA, general philosophical or policy disagreements with agency
decisions or actions are not protected unless they separately constitute a protected
disclosure of one of the categories of wrongdoing listed in section 2302(b)(8)(A).
Id. The appellant here alleges that the agency’s lack of clear policy guidelines
confuses the public and enables bad actors to engage in fraud by “elicit[ing]
[from agency staff] arbitrary, capricious interpretations via manipulations,
deception, harassment, bullying, and badgering of Agency staff.” PFR File,
Tab 6 at 10. These alleged disclosures represent general philosophical and policy
disagreements with the agency’s decisions. See Bradley v. Department of
Homeland Security , 123 M.S.P.R. 547, ¶ 11 (2016) (considering an alleged
disclosure that training should be funded at the headquarters, rather than regional,
level as a policy dispute that was not protected); Webb, 122 M.S.P.R. 248, ¶¶ 2,
7-10 (agreeing with an administrative judge that an appellant’s position paper
regarding the proposed restructuring of an agency subdivision was not a protected
disclosure but instead a policy disagreement).
To the extent the appellant argues that he reasonably believed his
disclosures evidenced gross mismanagement, we are not persuaded. The
jurisdictional determinations, we discern no basis to modify his analysis based on
Hessami. 7
administrative judge acknowledged this argument below but did not specifically
address it. ID at 5. We do so now.
Gross mismanagement means a management action or inaction which
creates a substantial risk of significant adverse impact upon the agency’s ability
to accomplish its mission. White v. Department of the Air Force , 63 M.S.P.R. 90,
95 (1994). Complaints of inefficient or ineffective conduct that wastes employee
time does not meet this standard. Cassidy v. Department of Justice , 118 M.S.P.R.
74, ¶¶ 6, 8 (2012); see Wood v. Department of Defense , 100 M.S.P.R. 133, ¶ 11
(2005) (finding gross mismanagement is more than de minimis wrongdoing or
negligence). Although the appellant’s suggested policy changes may increase
clarity to customers and save the agency money, he has not alleged that the lack
of clear policies has a significant impact on the agency’s ability to accomplish its
mission. Accordingly, the appellant has failed to nonfrivolously allege that he
reasonably believed any disclosure of the agency’s failure to mitigate the
harassing calls evidenced gross mismanagement.
To the extent the appellant argues that the lack of clear policies was an
abuse of authority, we are similarly unpersuaded. IAF, Tab 9 at 4; PFR File,
Tab 3 at 5-7, 15. The administrative judge acknowledged the appellant’s claim
below but did not specifically address it. ID at 5. Accordingly, we modify the
initial decision to do so.
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. Mc Corcle v. Department of Agriculture , 98 M.S.P.R. 363, ¶ 24
(2005). Although the appellant argues that the lack of clear policies results in
arbitrary and capricious decisions, he has not alleged that he reasonably believed
the agency created its allegedly deficient policies in an arbitrary and capricious
manner to adversely affect anyone’s rights or for personal gain or advantage.
Rather his allegations of abuse of authority are fundamentally his own personal8
complaints about how to structure the agency’s policies. See id., ¶¶ 20, 24
(concluding that an appellant’s allegations were fundamentally his own personal
complaints and grievances about how he was treated by the agency or mere
debatable disagreements with the agency’s policy decisions and, therefore, did
not constitute a nonfrivolous allegation of a protected disclosure).
The appellant additionally appears to argue on review that the lack of clear
policies led to wasted staff hours addressing repeated questions, which amounted
to a gross waste of funds. PFR File, Tab 3 at 10. The administrative judge did
not specifically address this argument. Therefore, we do so here.
A gross waste of funds is a more than debatable expenditure significantly
out of proportion to the benefit reasonably expected to accrue to the Government.
Van Ee v. Environmental Protection Agency , 64 M.S.P.R. 693, 698 (1994). The
waste of funds disclosed here is effectively the agency’s staff hours responding to
inquiries from the public. However, such an alleged loss of time does not amount
to a gross waste of funds. Cassidy, 118 M.S.P.R. 74, ¶ 8. Accordingly, we find
that the appellant has failed to nonfrivolously allege that he reasonably believed
he disclosed a gross waste of funds.3
The appellant argues that he made hundreds of complaints about the lack of
coherent policies. PFR File, Tab 3 at 6, 11. However, we find that the sheer
volume of complaints does not render them protected. See Hanse v. Merit
Systems Protection Board , 746 F. App’x 976, 983 (Fed. Cir. 2018) (finding that a
petitioner failed to support his theory that “aggregating several disclosures related
3 To the extent the appellant alleged that the agency committed a gross waste of funds
by insuring risky mortgages, we are similarly unpersuaded. IAF, Tab 9 at 5; PFR File,
Tab 3 at 9-10. The appellant has not alleged that any loss of funds actually occurred,
but rather that a large loss could occur should the United States suffer another economic
crash like the 2008 housing crisis. IAF, Tab 9 at 5; PFR File, Tab 3 at 9-10. The
hypothetical loss here outlined by the appellant is insufficient to establish a gross waste
of funds. See El v. Department of Commerce , 123 M.S.P.R. 76, ¶ 6 (2015) (explaining
that vague, conclusory, unsupported and pro forma allegations of wrongdoing are
insufficient to establish jurisdiction in an IRA appeal), aff’d per curiam, 663 F. App’x
921 (Fed. Cir. 2016).9
to policy disputes somehow transforms the individual disclosures into something
protected under § 2302(b)(8)”).4
Alleged harassing and fraudulent calls.
The appellant on review argues that he outlined the “who, what, when,
where, and how” of the harassing and fraudulent calls sufficient to meet his
jurisdictional burden. PFR File, Tab 3 at 17. The administrative judge held that
the appellant failed to nonfrivolously allege that he reasonably believed the
agency was behind the harassing calls. ID at 12. We agree.
The appellant asserts on review that the administrative judge erred in
failing to acknowledge that he reported that the agency targeted him with
harassing and fraudulent CRM inquiries. PFR File, Tab 3 at 16. The Board has
held that a disclosure of wrongdoing committed by a non-Federal Government
entity may be protected only when the Government’s interests and good name are
implicated in the alleged wrongdoing, and the employee shows that he reasonably
believed that the information disclosed evidenced that wrongdoing. Covington v.
Department of the Interior , 2023 MSPB 5, ¶ 16.5 The appellant has not alleged
that the Government’s interests and good name were implicated by the harassing
calls, and thus his alleged disclosures about the non -governmental calls are not
protected.
The appellant re-alleges on review that the agency was colluding with the
public in targeting him through “fake, fraudulent, and/or harassing, troll-like”
CRM inquiries. PFR File, Tab 3 at 17-18; IAF, Tab 9 at 58. We agree with the
administrative judge that the appellant failed to nonfrivolously allege that he had
4 The Board may follow a nonprecedential decision of the U.S. Court of Appeals for the
Federal Circuit when, as here, it finds its reasoning persuasive. LeMaster v.
Department of Veterans Affairs , 123 M.S.P.R. 453, ¶ 11 n.5 (2016).
5 Despite not having the benefit of the Board’s decision in Covington, which was issued
after the initial decision in this case, the administrative judge properly applied the same
reasoning, relying on Aviles v. Merit Systems Protection Board , 799 F.3d 457, 463-67
(5th Cir. 2015). ID at 10-12; see Covington, 2023 MSPB 5, ¶ 19 (citing Aviles with
approval). 10
a reasonable belief in such collusion. ID at 12. Vague, conclusory, and
unsupported 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 per
curiam, 663 F. App’x 921 (Fed. Cir. 2016); see Sobczak v. Environmental
Protection Agency , 64 M.S.P.R. 118, 122 (1994) (finding an appellant does not
establish jurisdiction over a disclosure when his alleged reasonable belief in
wrongdoing is based on unsupported speculation); 5 C.F.R. § 1201.4(s)
(explaining that nonfrivolous allegations are assertions that are more than
conclusory and are plausible on their face).
The appellant on review reasserts that “it was apparent that it was members
of his department and the Agency” who coordinated the harassing calls.
PFR File, Tab 3 at 17-18; IAF, Tab 9 at 58. He supports his conclusion with the
allegation that the callers exhibited “remarkably similar” behaviors to agency
employees in his department such as his first-level supervisor and the PUD
Director. PFR File, Tab 3 at 17-18. According to the appellant, both the callers
and the members of his agency exhibit “hostile, combative, and argumentative
behaviors” indicative of “[n]arcissists.” Id. In essence, the appellant is
supporting his conclusory assertion of collusion with other conclusory statements
characterizing the behavior of those agency employees that he believes are
involved. He has provided no specific or detailed information suggesting that the
calls originated from or were directed by members of his agency. Even accepting
as true that the callers and his coworkers exhibited similar hostile and combative
behaviors, the appellant has failed to allege sufficient facts to reach the
conclusion that the agency colluded with the callers. See Hessami, 979 F.3d
1362, 1368.
The appellant also appears to allege that, to the extent the agency did not
initiate the harassing CRM inquiries, he disclosed that the agency engaged in
similar harassment at staff meetings. PFR File, Tab 3 at 18-19; IAF, Tab 9 at 18,11
Tab 11 at 104-05. Although the administrative judge did not address this
purported disclosure, we discern no reversible error.
On review, the appellant refers to an email he sent to his first-level
supervisor, contained in the record below, asserting that the staff meetings were
“generally unpleasant, distasteful and mostly a huge waste of time.” IAF, Tab 11
at 104; PFR File, Tab 3 at 18-19. For the reasons stated above, this disclosure
does not rise to the level of a matter a reasonable person would believe evidences
wrongdoing covered by the WPEA. Accordingly, we decline to disturb the initial
decision on this basis. See Panter v. Department of the Air Force , 22 M.S.P.R.
281, 282 (1984) (finding that an adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis for reversal of an initial decision).
The administrative judge properly found the appellant nonfrivolously alleged he
engaged in protected activities.
The administrative judge found that the appellant nonfrivolously alleged
that his complaints to OIG and to OSC were protected activities. ID at 12-13;
IAF, Tab 23 at 57-58; 5 U.S.C. § 2302(b)(9)(C). He found that the appellant’s
EEO complaint, however, was not a protected activity. ID at 12-13; IAF, Tab 21
at 148; Young v. Merit Systems Protection Board , 961 F.3d 1323, 1329 (Fed. Cir.
2020) (explaining that under the WPEA, the Board does not have jurisdiction over
an employee’s claim that she was retaliated against for filing an EEO complaint
that did not seek to remedy whistleblower reprisal). The parties do not dispute
these findings on review, and we decline to disturb them.
The administrative judge correctly held that the appellant failed to nonfrivolously
allege that his protected activities contributed to the alleged personnel actions.
The appellant on review challenges the administrative judge’s finding that
he failed to nonfrivolously allege that anyone responsible for his personnel
actions knew about his OIG or OSC activities. PFR File, Tab 3 at 19; ID at 13.
We agree with the administrative judge. 12
In addition to nonfrivolously alleging that he engaged in a protected
activity, an appellant must nonfrivolously allege that the activity was a
contributing factor in the agency’s decision to take a personnel action. Carney v.
Department of Veterans Affairs , 121 M.S.P.R. 446, ¶ 7 (2014). An employee may
establish, for jurisdictional purposes that a protected activity was a contributing
factor through circumstantial evidence, such as the acting official’s knowledge of
the protected activity and the timing of the personnel actions. Id. Thus, an
appellant’s nonfrivolous allegation that the official taking the personnel action
knew of the protected activity and that the personnel action occurred within a
period of time such that a reasonable person could conclude that the activity was
a contributing factor in the personnel action is sufficient to meet the
knowledge/timing test and satisfy the appellant’s burden to make a nonfrivolous
allegation of a contributing factor. Id. As we indicated above, in determining
whether an appellant has nonfrivolously alleged contributing factor, we must
accept the appellant’s allegations as true. Hessami, 979 F.3d 1362, 1368-69.
However, vague, conclusory, and unsupported allegations do not meet the
nonfrivolous pleading standard needed to establish the Board’s jurisdiction over
an IRA appeal. El, 123 M.S.P.R. 76, ¶ 6; see Hessami, 979 F.3d 1362, at 1367
(citing with approval the Board’s regulation at 5 C.F.R. § 1201.4(s), defining a
nonfrivolous allegation as more than conclusory and plausible on its face).
At the outset, we note that the letter of reprimand received by the appellant
pre-dates both his OIG and OSC complaints. IAF, Tab 10 at 420, Tab 21 at 2, 87,
Tab 23 at 57. Accordingly, these protected activities could not have been
contributing factors in his letter of reprimand. See Mason v. Department of
Homeland Security , 116 M.S.P.R. 135, ¶ 27 (2011) (determining that disclosures
which occurred after the agency took an alleged personnel action could not have
been a contributing factor in the action), aff’d per curiam , 496 F. App’x 75 (Fed.
Cir. 2013). Additionally, the proposal to suspend the appellant for 14 days pre-
dates his OSC complaint, and thus his OSC complaint similarly could not have13
been a contributing factor in that proposal. IAF, Tab 9 at 41, Tab 21 at 2, 87.
However, the agency issued the proposed suspension approximately 14 months
after the appellant filed his OIG complaint and issued its decision on his 14-day
suspension after the appellant filed both the OIG and OSC complaints. IAF,
Tab 9 at 32, 41, Tab 21 at 2, 87, Tab 23 at 57. Because the appellant’s protected
activity occurred less than 2 years prior to the agency’s decision on his
suspension, we find that the appellant sufficiently established the timing prong of
the knowledge/timing test as to this personnel action.6 See Mastrullo v.
Department of Labor , 123 M.S.P.R. 110, ¶ 21 (2015) (observing that the Board
has held that a personnel action taken within approximately 1 to 2 years of the
appellant’s disclosures satisfies the knowledge/timing test). As set forth below,
however, we agree with the administrative judge that the appellant has failed to
nonfrivolously allege knowledge.
The appellant on review alleges that the physical proximity between the
OIG office and the individuals responsible for his personnel actions, in addition
to “formal and back channel communications” between agency departments
demonstrates knowledge. PFR File, Tab 3 at 19. He further argues that, given
his computer is monitored by the agency and that “no privacy exists within the
government system,” the agency must have known of his protected activity. Id.
He alleges that his “hyper vigilant supervisors” were already searching for
excuses to retaliate against him, suggesting they were constantly monitoring his
computer traffic. Id. at 19-20.
First, we find the suggestion that the appellant’s “hyper vigilant
supervisors” or other agency personnel were constantly monitoring his computer
traffic is conclusory and implausible. See Hessami, 979 F.3d 1362, 1367;
6 We recognize that the appellant did not satisfy the knowledge/timing test as to his
proposed 14-day suspension and his OSC complaint. IAF, Tab 9 at 41, Tab 21 at 2, 87.
Nonetheless, in order to simplify our analysis here, and because it does not affect the
outcome, we treat the proposal and decision letters as the same personnel action.
See 5 U.S.C. § 2302(b)(9) (stating that an employee is prohibited from taking, or
threatening to take, a personnel action because of a protected activity)14
5 C.F.R. § 1201.4(s). Regarding the alleged “formal and back channel
communications,” the appellant has provided no facts that, if true, would
establish that such communication channels exist or that the officials who
proposed and decided his 14-day suspension gained knowledge of his protected
activities through such channels. Kerrigan v. Merit Systems Protection Board ,
833 F.3d 1349, 1352, 1354-55 (Fed. Cir. 2016) (concluding that a petitioner
failed to make a nonfrivolous allegation that the individuals who took the alleged
personnel actions against him had knowledge of his disclosure based on “the
generalized assertion that someone within the agency without any accompanying
allegations as to the size, composition, or structure of that agency” was aware of
the disclosure (emphasis in original)). Similarly, his assertion that the agency’s
OIG and the individuals responsible for his personnel actions shared the same
office, “limited to just a few contiguous floors in the same building” is lacking
sufficient facts to assume knowledge. PFR File, Tab 3 at 19. The appellant has
not specifically alleged that knowledge passed to the proposing and deciding
officials as a result of this proximity and, if so, how. See Kerrigan, 833 F.3d
1349, 1355 (declining to infer that acting officials were aware of a petitioner’s
disclosure based on “closeness in timing” between his disclosure and the alleged
personnel actions); Johnston v. Merit Systems Protection Board , 518 F.3d 905,
912 & n.3 (Fed. Cir. 2008) (finding an appellant nonfrivolously alleged
knowledge when she submitted an affidavit stating that she informed her
supervisor that she was going to voice her concerns to the OIG shortly before
receiving personnel actions). As such, his suggestions and assumptions, without
more, are insufficient to meet the nonfrivolous pleading standard. See El,
123 M.S.P.R. 76, ¶ 6.
The Board has held that, if an appellant fails to satisfy the
knowledge/timing test, it shall consider other evidence, such as the strength or
weakness of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the individuals taking the personnel15
action, and whether these individuals had a desire or motive to retaliate against
the appellant. Dorney v. Department of the Army , 117 M.S.P.R. 480, ¶ 15 (2012).
The administrative judge provided the appellant with notice of this alternative
method of proving contributing factor but did not conduct a corresponding
analysis. IAF, Tab 3 at 4-5; ID at 12-13. Thus, we modify the initial decision to
supplement the administrative judge’s analysis of the contributing factor element.
Here, we have agreed with the administrative judge’s determination that the
appellant has failed to nonfrivolously allege that his first-level supervisor and the
PUD Director, who proposed and issued his 14-day suspension, knew of his
protected activities. ID at 12-13. Further, the appellant has not alleged that these
individuals were influenced by others with such knowledge. PFR File, Tab 3
at 19-20; see Dorney, 117 M.S.P.R. 480, ¶ 11 (explaining that an appellant can
show that a disclosure was a contributing factor in a personnel action by proving
that an individual with actual knowledge of the disclosure influenced the official
accused of taking the retaliatory action). Even assuming the OSC and OIG
complaints were directed at the individuals responsible for his suspension, and
that the agency’s reasons for suspending the appellant were not strong, we
conclude that the appellant has failed to nonfrivolously allege contributing factor
under the Dorney analysis. A protected disclosure is a contributing factor if it
affects an agency’s decision to threaten, propose, take, or fail to take a personnel
action. Dorney, 117 M.S.P.R. 480, ¶ 14. Because the appellant has failed to
nonfrivolously allege that the proposing and deciding officials knew of, or were
influenced by someone who knew of, the appellant’s disclosures, he has failed to
allege a set of facts that, if true, would prove that his complaints affected his
14-day suspension.
The appellant’s remaining arguments on review are unpersuasive.
The appellant argues on review that his disclosures are protected even if
they were made in the normal course of his duties. PFR File, Tab 3 at 13. The
administrative judge briefly addressed this contention, finding that it did not16
affect the outcome of the appeal. ID at 10. The Board has found that disclosures
made in the normal course of one’s job duties are not excluded from the
definition of a protected disclosure. Scoggins v. Department of the Army ,
123 M.S.P.R. 592, ¶ 14 (2016) (citing 5 U.S.C. § 2302(f)(2)). However, as set
forth above, because we find that the appellant has failed to nonfrivolously allege
that he made a protected disclosure, this analysis has no bearing on the outcome
of this case.
The appellant further argues that the initial decision was issued before he
could reply to the agency’s response to the administrative judge’s jurisdictional
order. PFR File, Tab 3 at 5-6. Per the administrative judge’s order, the record on
the issue of jurisdiction closed on the date the agency’s response to the
appellant’s jurisdictional statement was due. IAF, Tab 3 at 8. However, the
administrative judge further stated that the appellant would have an opportunity
to respond to any new evidence or argument submitted by the agency. Id. We,
therefore, find that the administrative judge erred in precipitately issuing the
initial decision 2 days after the agency submitted its jurisdictional response,
effectively denying the appellant an opportunity to reply. IAF, Tab 30; ID at 1;
see Borowski v. Department of Agriculture , 46 M.S.P.R. 564, 566-68 (1991)
(determining that an administrative judge erred in closing the record on the same
day that the appellant presumably received the agency’s close-of-record
submission, which included new evidence on which the administrative judge
relied in issuing the initial decision). However, this error was harmless.
See Panter, 22 M.S.P.R. at 282. The appellant now has had the opportunity to
address the agency’s new evidence and argument through his petition for review,
and we have addressed those arguments in this Order. Thus, we find that the
appellant was not prejudiced by receiving the agency’s pleading on the date the
record closed, 2 days prior to the issuance of the initial decision. Rittgers v.
Department of the Army , 123 M.S.P.R. 31, ¶ 6 (2015).17
In accordance with the appellant’s ability to file evidence and argument in
rebuttal to the agency’s submission just before the record closed, we have
considered the appellant’s new documents, submitted for the first time on review.
PFR File, Tab 3 at 22-37. We find that this new evidence and argument does not
alter our conclusion. The documents include an email thread in response to the
appellant’s adverse action, wherein the appellant sought to effectively engage in
discovery of documents relevant to his claim regarding the harassing and
fraudulent calls. Id. at 22-28. These requests predate his Board appeal, and as
discussed above, an appellant is nonetheless not entitled to discovery in an IRA
appeal prior to establishing a nonfrivolous allegation of jurisdiction. Sobczak,
64 M.S.P.R. at 122.
The remaining document appears to be a checklist that the appellant
purports relates to the administration of purchase contracts. PFR File, Tab 3 at 6,
29-37. Even assuming the appellant previously exhausted this disclosure with
OSC, he has failed to nonfrivolously allege that the checklist evidenced
wrongdoing under the WPEA. On the checklist, the appellant provided comments
that a contract between the agency and a contractor was “unclear, vague,
ambiguous, and confusing to the point of being misleading.” PFR File, Tab 3
at 32-33. He further provided examples of language he suggested the agency
modify. Id. at 32, 35-36. The disclosure does not evidence that the appellant
reasonably believed, or even believed at all, that the contract evidenced 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).
Accordingly, we affirm the initial decision, as modified above.18
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for 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.19
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 any20
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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’s21
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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. 22
Contact information for the courts of appeals can be 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 | Schuler_FrederickDE-1221-20-0171-W-1_Final_Order.pdf | 2024-08-06 | FREDERICK SCHULER v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, MSPB Docket No. DE-1221-20-0171-W-1, August 6, 2024 | DE-1221-20-0171-W-1 | NP |
763 | https://www.mspb.gov/decisions/nonprecedential/Onyewuchi_MorrisDA-3330-21-0036-I-4 Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MORRIS ONYEWUCHI,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-3330-21-0036-I-4
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Morris Onyewuchi , Laguna Vista, Texas, pro se.
Patricia Washington , 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 his request for corrective action in his Veterans Employment
Opportunities Act of 1998 (VEOA) 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
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to supplement the administrative judge’s analysis that the appellant
failed to prove that the agency violated regulations related to veterans’ preference
rights, we AFFIRM the initial decision.
¶2On review, the appellant argues, amongst other things, that the
administrative judge failed to address his claim that the agency violated 5 C.F.R.
§§ 302.202-.203 when it made ad hoc qualification requirements and disqualified
him from competing for the Appellate Immigration Judge (AIJ) position. Petition
for Review (PFR) File, Tab 4 at 9-16, 21-28. Specifically, he asserts that the
agency unlawfully made experience as an EOIR Acting Deputy Director a
qualification standard to select non-preference eligible individuals over him for
the AIJ position. Id. at 11-14. Thus, according to the appellant, the agency
disqualified him from further competing based on the ad hoc qualification
standard. Id. We are not persuaded.
¶3It appears that the appellant is conflating the agency’s evaluation of the
qualified candidates’ experience with its qualification standards. Id. at 9-16,
21-28. The record reflects that the agency accepted the appellant’s application,
found that he met its qualification standards, and included him on its certificate of
qualified applicants. Onyewuchi v. Department of Justice , MSPB Docket
No. DA-3330-21-0036-I-4, Appeal File (I-4 AF), Tab 5 at 203-08, Tab 11 at 31,2
35-37, 48-55. Nonetheless, the agency did not select the appellant for an AIJ
position. I-4 AF, Tab 5 at 160-61. Therefore, we interpret the appellant’s
argument to be a challenge to the agency’s assessment of another candidate’s
experience in comparison to his experience. PFR File, Tab 4 at 9-16.
¶4VEOA does not empower the Board to reevaluate the merits of the agency’s
ultimate determination that the preference-eligible appellant is not the best
qualified candidate for the position. See Miller v. Federal Deposit Insurance
Corporation, 121 M.S.P.R. 88, ¶ 12 (2014), aff’d, 818 F.3d 1361 (Fed. Cir.
2016). How the agency weighs the appellant’s experiences is beyond the purview
of the Board’s review in this VEOA appeal. Id., ¶ 9. To the extent that the
administrative judge erred in failing to address the appellant’s claim that the
agency violated regulations set forth at 5 C.F.R. §§ 302.202-.203 , which he raised
in the proceedings below, see I-4 AF, Tab 5 at 16-17, 77-93, Tab 13 at 22-29, her
error did not prejudice the appellant’s substantive rights. See Panter v.
Department of the Air Force , 22 M.S.P.R. 281, 282 (1984) (holding that an
adjudicatory error that is not prejudicial to a party’s substantive rights provides
no basis for reversal of an initial decision).
¶5Based on the foregoing, we affirm as modified the initial decision, still
denying the appellant’s request for corrective action under VEOA.
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
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
provide legal advice on which 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.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. 115-195,6
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 | Onyewuchi_MorrisDA-3330-21-0036-I-4 Final_Order.pdf | 2024-08-06 | MORRIS ONYEWUCHI v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-3330-21-0036-I-4, August 6, 2024 | DA-3330-21-0036-I-4 | NP |
764 | https://www.mspb.gov/decisions/nonprecedential/Zummer_Michael_S_DA-0752-23-0232-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL ZUMMER,
Appellant,
v.
DEPARTMENT OF JUSTICE,
Agency.DOCKET NUMBER
DA-0752-23-0232-I-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael Zummer , New Orleans, Louisiana, pro se.
Chad Tang , 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
dismissed his appeal of the agency’s indefinite suspension and removal actions as
untimely filed without good cause shown. On petition for review, the appellant
argues primarily that the administrative judge erroneously interpreted and applied
the doctrine of equitable tolling, and he reasserts that his appeal was timely filed
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
within 30 days of the end of his Federal litigation concerning the agency’s
underlying negative security clearance determinations. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
NOTICE OF APPEAL RIGHTS2
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. 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 | Zummer_Michael_S_DA-0752-23-0232-I-1_Final_Order.pdf | 2024-08-06 | MICHAEL ZUMMER v. DEPARTMENT OF JUSTICE, MSPB Docket No. DA-0752-23-0232-I-1, August 6, 2024 | DA-0752-23-0232-I-1 | NP |
765 | https://www.mspb.gov/decisions/nonprecedential/Brisbane_Sean_A_DE-0752-20-0072-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SEAN A. BRISBANE,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DE-0752-20-0072-I-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Janice L. Jackson , Leavenworth, Kansas, for the appellant.
Stephen D. Kort , Esquire, Kansas City, Missouri, for the appellant.
Kristine Hale Bell , Fort Leavenworth, Kansas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
incorporate the appropriate standards for the appellant’s claims of disability
discrimination and reprisal for equal employment opportunity (EEO) activity, we
AFFIRM the initial decision.
The following facts, as further detailed in the initial decision, are not
disputed. The appellant most recently held the position of Management and
Program Analyst. Initial Appeal File (IAF), Tab 53, Initial Decision (ID) at 2.
He had a tumultuous relationship with his supervisor, which became especially
problematic around October 2018. ID at 2-6. Ultimately, the agency initiated an
Army Regulation (AR) 15-6 investigation about the appellant’s conduct. IAF,
Tab 4 at 135-38. The agency completed that investigation in December 2018. ID
at 6-7; IAF, Tab 4 at 119-32.
In May 2019, the agency proposed the appellant’s removal. ID at 8; IAF,
Tab 4 at 88-104. After the appellant responded, the deciding official removed
him, effective October 2019. ID at 8; IAF, Tab 4 at 36, 48-54.
The appellant filed the instant appeal to challenge his removal. IAF, Tab 1.
The administrative judge developed the record and held a 4-day hearing before
issuing a decision that upheld the removal action. For the agency’s first charge,
behavior that caused anxiety in the workplace, the administrative judge sustained
specifications 2, 3, 4, 7, 9, 10, and 13, but not specifications 1, 5, 6, 8, 11, and2
14.2 ID at 9-31. For the second charge, inappropriate behavior, the
administrative judge sustained specifications 3, 6, 7, 8, 9, and 11, but not
specifications 1, 2, 4, 5, 10, and 12. ID at 31-45. For the third and final charge,
refusal to testify or cooperate in an investigation, the administrative judge
sustained the only specification. ID at 45-49.
The administrative judge also considered but rejected the appellant’s
affirmative defenses, which included harmful procedural error, ID at 49-56,
disability discrimination, ID at 56-64, reprisal for EEO activity, ID at 64-68, and
reprisal for whistleblowing, ID at 68-77. Finally, the administrative judge found
that the agency established the requisite nexus and reasonableness of its penalty.
ID at 77-80.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He challenges the administrative judge’s findings regarding each
charge and each affirmative defense. Id. However, the appellant does not
challenge the administrative judge’s findings regarding nexus or the
reasonableness of the penalty. The agency has filed a response to the appellant’s
petition. PFR File, Tab 3.
The administrative judge properly sustained the agency’s charges.
The administrative judge did not sustain all underlying specifications, but
she did sustain all of the agency’s charges. ID at 9-49; see Greenough v.
Department of the Army , 73 M.S.P.R. 648, 657 (1997) (recognizing that proof of
one or more of the supporting specifications is sufficient to sustain a charge).
The appellant has presented arguments on review regarding each charge, so we
will address them in turn.
Charge 1 – Behavior that caused anxiety in the workplace
The administrative judge sustained specifications 2, 3, 4, 7, 9, 10, and 13 of
this charge, which are fully recounted in the proposal notice and the initial
2 The deciding official did not sustain specification 12, so the administrative judge did
not consider that specification. IAF, Tab 4 at 48.3
decision. ID at 9-31; IAF, Tab 4 at 95-96. Broadly speaking, the administrative
judge made well-reasoned and detailed explanations for why she was persuaded
by documentary evidence and other witness testimony for these specifications,
and why she did not find the appellant’s denials credible. E.g., ID at 11-16. For
example, the administrative judge explained how the appellant provided
testimony contrary to clear and unambiguous documentary evidence, ID at 11-12,
how he provided testimony that was internally inconsistent, ID at 13-14, and how
he displayed inappropriate behavior during the hearing that was more consistent
with the agency’s allegations than the appellant’s denials of the same, ID
at 19-20.
On review, the appellant has described a few facts that seem to implicate
this charge as he argues that the administrative judge did not adequately discuss
or account for them in her initial decision. PFR File, Tab 1 at 5-7. For example,
the appellant argues that his supervisor has posttraumatic stress disorder (PTSD),
but that this was not accounted for when considering her interpretation of the
appellant’s behaviors. PFR File, Tab 1 at 6. Although we have considered these
arguments, we do not find them persuasive. The administrative judge’s failure to
mention all 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).
Moreover, the appellant is effectively asking that we overturn the administrative
judge’s credibility findings for the sustained specifications, but he has not
presented sufficiently sound reasons for us 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 may overturn such determinations only when it has “sufficiently
sound” reasons for doing so).4
The appellant’s next argument regarding the first charge is that the
administrative judge erred by refusing to apply the elements of a threat charge.
PFR File, Tab 1 at 8-11; ID at 10 n.2. We decline to look past the language of the
charge and accompanying specifications, which do not reference any “threat.” To
the extent that the appellant seeks that we consider the language of the AR 15-6
report that preceded his proposed removal, which did include the word “threat,”
PFR File, Tab 1 at 10; compare IAF, Tab 4 at 94-96 (charging the appellant with
“behavior that caused anxiety in the workplace”), with id. at 119-32 (AR 15-6
report, describing the agency’s “threat assessment” of the appellant), we will not
do so.
An agency is required to prove the charge as it is set out in the notice of
proposed removal, not some other offense that might be sustainable by the facts
of the case. Parbs v. U.S. Postal Service , 107 M.S.P.R. 559, ¶ 8 (2007), aff’d
301 F. App’x 923 (Fed. Cir. 2008). Accordingly, the agency was not required to
prove the elements of a threat charge because it did not charge him with making a
threat. See Gray v. Government Printing Office , 111 M.S.P.R. 184, ¶ 11 (2009)
(explaining that an agency need not prove the elements of a threat charge when it
brings a charge such as making statements that caused anxiety and disruption in
the workplace); Sands v. Department of Labor , 88 M.S.P.R. 281, ¶ 13 (2001)
(recognizing that a charge of “threatening conduct” and a charge of making
“statements that resulted in anxiety and disruption in the workplace” are distinct
and only the threat charge requires proof of intent).
Charge 2 – Inappropriate behavior
For the agency’s second charge, the administrative judge sustained
specifications 3, 6, 7, 8, 9, and 11. ID at 31-45. On review, the appellant’s
argument about this charge mirrors the argument he presented for the first charge.
According to the appellant, the agency’s charge of inappropriate behavior should
be interpreted as a threat charge and should require proof of his intent. PFR File,
Tab 1 at 12-13. This argument fails for the same reasons discussed above. The5
agency labeled its charge “inappropriate behavior,” and the underlying
specifications describe the same; none allege that he made a threat. IAF, Tab 4 at
96-98. Accordingly, the agency was not required to prove the elements of a
threat charge. See Canada v. Department of Homeland Security , 113 M.S.P.R.
509, ¶ 9 (explaining that a charge of conduct unbecoming or improper conduct
has no specific elements of proof, but is established by proving that the employee
committed the acts alleged in support of the broad label).
Charge 3 – Refusal to testify or cooperate in an investigation
For the agency’s third and final charge, the administrative judge sustained
the only specification, which described how the appellant repeatedly refused to be
interviewed in concert with the agency’s investigation. ID at 45-49. Among
other things, she relied on contemporaneous memos about the events surrounding
the appellant’s refusal to cooperate as the agency repeatedly tried to interview
him for its investigation. IAF, Tab 4 at 168-77.
On review, the appellant does not argue that he cooperated in the
investigation. He instead argues that the agency’s charge must fail because,
according to the appellant, the agency failed to comply with AR 15-6 guidelines
regarding the location of the investigatory interview and notice that he was the
subject of the investigation.3 PFR File, Tab 1 at 12 (referencing IAF, Tab 18
at 26-27). The administrative judge discussed these matters as she sustained the
charge. Among other things, she described evidence showing that the
investigator accommodated the appellant’s various objections, including ones
about the location of the interview and the presence of a note taker. ID at 46-48;
e.g., IAF, Tab 4 at 168-77. The administrative judge also described how the
information provided by the investigator, along with other surrounding
circumstances, satisfied the requirements of AR 15-6, which merely provides that
3 The appellant has attempted to frame this argument as one regarding the agency’s
burden of proving the charge, rather than his burden of proving a harmful procedural
error. Either way, the argument is unavailing.6
the investigating officer will ordinarily inform witnesses of the nature of the
investigation. ID at 48; e.g., IAF, Tab 16 at 36. Although the appellant has
summarily asserted that the agency acted improperly as it attempted to question
him for its investigation, he has not presented persuasive argument or evidence of
the same and he has not shown that the administrative judge erred in sustaining
this charge.
The appellant failed to prove his affirmative defenses.
The administrative judge found that the appellant failed to prove his
affirmative defenses of harmful procedural error, ID at 49-56, disability
discrimination, ID at 56-64, reprisal for equal employment opportunity (EEO)
activity, ID at 64-68, and reprisal for whistleblowing, ID at 68-77. As further
detailed below, the appellant’s petition for review presents no basis for us to
reach a contrary conclusion.
Harmful procedural error
Harmful error is a procedural error by the agency in the application of its
procedures that is 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. 5 C.F.R.
§ 1201.4(r). The burden is on the appellant to show that that the agency
committed the error, but also that the error was harmful, i.e., that it caused
substantial harm or prejudice to his rights. Id.; 5 C.F.R. § 1201.56(c)(1).
Harmful error cannot be presumed; an agency error is harmful only when the
record shows that the procedural error was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. Stephen v. Department of the Air Force , 47 M.S.P.R. 672, 681,
685 (1991).
The administrative judge considered and rejected several claims of harmful
procedural error, including a claim that the agency erred by relying on some
misconduct that was years old by the time of his proposed removal. ID at 49-50.7
She also considered claims that the agency violated internal policies regarding the
appointment of an appropriate investigating officer, ID at 50-52, conflicts of
interest, ID at 52-53, protection of the interview process, ID at 53, the
appointment memorandum for the investigation, ID at 54, the agency’s lack of a
local workplace violence policy, ID at 54-55, and the agency’s treatment of the
appellant’s employment after its investigation but before his proposed removal,
ID at 55-56.
For the most part, the administrative judge found that the appellant failed
to prove the errors he alleged. ID at 49-54. However, for his last harmful error
claims, regarding the lack of local workplace violence policy and his employment
status in the period leading up to his proposed removal, the administrative judge
simply found that even if the agency erred, the appellant failed to prove that the
error was harmful. ID at 54-56.
On review, the appellant reasserts several of his harmful error claims. PFR
File, Tab 1 at 12-17. For example, he once again contends that the agency erred
by relying in part on misconduct that was years old by the time of his proposed
removal. Id. at 13. Yet the appellant has not directed us to any associated policy
or other prohibition. He has instead directed us to Board precedent that is
inapplicable. Id. (referencing, e.g., Metz v. Department of the Treasury , 780 F.2d
1001, 1004 (Fed. Cir. 1986)). In another example, the appellant directs us to the
agency’s policy regarding the appointment of an appropriate investigating officer,
including a provision indicating that the agency should appoint “the best qualified
person.” PFR File, Tab 1 at 14-15 (referencing IAF, Tab 18 at 22). According to
the appellant, the agency violated that provision because it appointed someone as
investigating officer who had only recently been promoted to the GS-13 level and
had not ever conducted a similar investigation. PFR File, Tab 1 at 15. However,
the appellant has not presented any explanation of how this was harmful, even if
we were to find that the agency erred.8
We have considered each of the appellant’s other arguments pertaining to
his harmful procedural error claims but find that they fail for similar reasons.
Therefore, we agree with the administrative judge’s conclusion that the appellant
failed to meet his burden of proving any harmful procedural error.
Disability discrimination
The administrative judge construed the appellant’s arguments pertaining to
disability discrimination as consisting of a disparate treatment claim and a
failure-to-accommodate claim. ID at 57. She found that the appellant failed to
prove either. ID at 57-64. As further detailed below, we modify the initial
decision to recognize the proper standard for the disparate treatment claim, while
reaching the same conclusions.
Regarding the appellant’s allegation of disparate treatment, the
administrative judge relied on the standards provided in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973) and Southerland v. Department of
Defense, 119 M.S.P.R. 566, ¶ 21 (2013). ID at 60-61. However, during the
period that followed the initial decision in this appeal, the Board has clarified that
those cases do not provide the appropriate analytical framework. Haas v.
Department of Homeland Security , 2022 MSPB 36, ¶ 31; Pridgen v. Office of
Management and Budget , 2022 MSPB 31, ¶ 42.
Under the appropriate standard, the Board first determines whether the
appellant has shown by preponderant evidence that the prohibited consideration
was a motivating factor in the contested personnel action, and if so, whether the
agency has shown by preponderant evidence that it would have taken the
contested action in the absence of the discriminatory motive. Pridgen, 2022
MSPB 31, ¶ 42. We agree with the administrative judge that the appellant failed
to prove that his disability—PTSD and a traumatic brain injury—was a
motivating factor in the removal action, thereby making findings that are9
dispositive under the correct standard.4 ID at 61. Among other things, the
administrative judge rejected the appellant’s arguments about some of his
misconduct being a manifestation of his disability as well as his arguments that
coworkers perceived his conduct through stereotypes about his disability. ID at
61-64.
Regarding the failure -to-accommodate claim, the administrative judge
properly recognized that an agency has certain obligations regarding reasonable
accommodations. ID at 58. She also recognized that the facts of this case
included the appellant requesting a reasonable accommodation in late 2018 and
the agency granting an accommodation in early 2019, but never working under
those accommodations before his removal because he was on administrative
leave. ID at 58-59. While the appellant argued that the agency was obligated to
take him off administrative leave and allow him to work under the new
accommodations in the period leading up to his removal, the administrative judge
disagreed. ID at 59.
On review, the appellant has presented several challenges to the
administrative judge’s findings regarding disability discrimination. PFR File,
Tab 1 at 17-20. However, these largely consist of the appellant expressing
disagreement with the administrative judge’s findings, but doing so without
identifying any evidentiary or legal support. To illustrate, the appellant simply
reasserts that the agency discriminated by failing to return him to a duty status
during the period between its approval of a reasonable accommodation and his
removal. Id. at 17. He also summarily states that a judge from the Equal
Employment Opportunity Commission once ruled in his favor, so the
administrative judge should have found that the appellant proved discrimination
in this appeal. Id. at 18. These arguments are not persuasive, and they do not
meet the Board’s requirements for further review. See 5 C.F.R. § 1201.114(b)
4 Because we find that the appellant failed to prove that his disability was a motivating
factor in his removal, we need not reach the question as to whether it was a but-for
cause. Pridgen. 2022 MSPB 31, ¶ 42.10
(providing that a petition for review must state a party’s objections to the initial
decision, including all of the party’s legal and factual arguments, and must be
supported by specific references to the record and any applicable laws or
regulations); see also Weaver v. Department of the Navy , 2 M.S.P.R. 129, 133
(1980) (determining that, before the Board will undertake a complete review of
the record, a petitioning party must explain why the challenged factual
determination is incorrect and identify the specific evidence in the record that
demonstrates the error).
Aside from the initial decision, the only thing the appellant has directed us
to in his arguments about disability discrimination is a few documents from the
record below. PFR File, Tab 1 at 19-20 (citing IAF, Tab 4 at 94, 131, 195, 210,
Tab 5 at 46-48). These include portions of the proposal to remove him, IAF,
Tab 4 at 94, and the AR 15-6 investigatory report, id. at 131, along with a couple
of sworn statements from coworkers indicating that the appellant had a
tumultuous relationship with a particular agency official, id. at 193-94, 209-10,
and an email chain in which the appellant presented a variety of complaints about
the agency, IAF, Tab 5 at 46-48. Although we have reviewed each of these
documents, we find no basis for concluding that they meaningfully contribute to
the appellant’s burden. Therefore, we agree with the administrative judge’s
conclusion that the appellant has not proven that his disability was a motivating
factor in his removal or that the agency failed to meet its obligations concerning
reasonable accommodation.
EEO reprisal
During the period that followed the initial decision in this appeal, the
Board also clarified the proper standard for claims of EEO reprisal, noting that
the standard differs depending on whether the claim arises under Title VII or the
Rehabilitation Act. Reprisal claims arising under Title VII are subject to the
burden shifting scheme previously discussed. Pridgen, 2022 MSPB 31, ¶ 33.
However, in a reprisal claim arising under the Rehabilitation Act, there is no11
burden shifting; the appellant must prove but-for causation in the first instance.
Id., ¶ 47.
The administrative judge applied the standard that applies to reprisal claims
arising under Title VII. ID at 64-66. She should have instead applied the more
stringent standard since the appellant’s EEO activity arose under the
Rehabilitation Act. See, e.g., IAF, Tab 4 at 39, 43, Tab 12 at 85. Nevertheless,
because the administrative judge found that the appellant failed to meet the lesser
motivating factor standard, and we agree, the appellant necessarily failed to meet
the more stringent but-for standard.
The administrative judge acknowledged that numerous agency officials had
knowledge of the appellant’s EEO complaints, including the proposing and
deciding officials. ID at 66. She also acknowledged that one agency official had
acted inappropriately by discussing one of the appellant’s prior EEO complaints
with another employee. ID at 67. However, she found that there was little else to
support the appellant’s burden of proof and the record instead supported a
conclusion that the EEO complaint and removal were unrelated. ID at 66-68.
The administrative judge provided several reasons for this, with one being the
fact that the appellant’s supervisor issued a counseling letter about the appellant’s
behavior months before his EEO complaint. ID at 67; see IAF, Tab 4
at 43, 178-79.
On review, the appellant argues that the administrative judge’s finding
about the timing of the counseling memo and EEO complaint is “totally false.”
PFR File, Tab 1 at 20-21. However, he then describes other things that reportedly
occurred prior to the counseling memo or his EEO complaint, including the
agency subjecting him to prior investigations. Id. at 21. It seems that the
appellant is insinuating that the appellant’s supervisor knew about these prior
matters and that somehow supports his EEO reprisal claim. We disagree. The
appellant’s arguments on review disagree with the administrative judge’s12
findings, but they do not support a conclusion that his EEO activity was either a
motivating factor in or a but-for cause of his removal.
Whistleblower reprisal
In an adverse action appeal such as this, an appellant’s claim of
whistleblower reprisal is treated as an affirmative defense. Campbell v.
Department of the Army , 123 M.S.P.R. 674, ¶ 11 (2016). In such instances, once
the agency proves its adverse action case by a preponderance of the evidence, the
appellant must show by preponderant evidence that he made a disclosure
protected by 5 U.S.C. § 2302(b)(8) or engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), or (D) and that the disclosure or activity was a
contributing factor in his removal. Id. (explaining this burden for disclosures
protected under section 2302(b)(8)); see Alarid v. Department of the Army ,
122 M.S.P.R. 600, ¶ 12 (2015) (recognizing that the same standard applies to
certain activities protected under section 2302(b)(9)).
If an appellant meets his burden, the burden shifts to the agency to prove
by clear and convincing evidence that it would have taken the same action in the
absence of the protected disclosures or activities. Campbell, 123 M.S.P.R. 674,
¶ 12. In determining whether the agency has met this burden, the Board will
consider the following factors: (1) the strength of the agency’s evidence in
support of its action; (2) the existence and strength of any motive to retaliate on
the part of the agency officials 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. Id. (citing Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)). The Board does not view
these factors as discrete elements, each of which the agency must prove by clear
and convincing evidence; rather, the Board will weigh the factors together to
determine whether the evidence is clear and convincing as a whole. Id. Further,
the U.S. Court of Appeals for the Federal Circuit has added that “[e]vidence only
clearly and convincingly supports a conclusion when it does so in the aggregate13
considering all the pertinent evidence in the record, and despite the evidence that
fairly detracts from that conclusion.” Whitmore v. Department of Labor ,
680 F.3d 1353, 1368 (Fed. Cir. 2012).
Below, the administrative judge relied on this standard and found that the
appellant met his burden of proof regarding one disclosure—a June 2018 email
containing a litany of accusatory questions about many topics, ranging from
appraisal awards and nepotism to enforcement of leave policies and illegal
parking. ID at 67-72; see IAF, Tab 5 at 46-47. Although the appellant argued
that he made other protected disclosures and engaged in other protected activities,
the administrative judge disagreed. ID at 69-72. The administrative judge then
shifted the burden to the agency and found that it proved that the agency would
have taken the same removal action in the absence of the appellant’s June 2018
email. ID at 73-77.
On review, the appellant first argues that he met his burden of proof
regarding another disclosure contained in a series of correspondence between
union and management officials in and around May 2018. PFR File, Tab 1
at 22-23 (referencing IAF, Tab 15 at 5-19). The administrative judge recognized
that the correspondence contained a protected disclosure by the union official, but
she found no proof that the appellant made the disclosure or was perceived to
have done so. ID at 70. In his petition, the appellant seems to argue that the May
2018 correspondence between a union official and management contained similar
concerns as his June 2018 disclosure, so management officials must have
perceived him as the whistleblower behind both, even though he was not the
signatory to the May 2018 correspondence. PFR File, Tab 1 at 22. We are not
persuaded. The appellant has not identified any evidentiary support for this
theory, and the two sets of correspondence are not particularly similar. Compare
IAF, Tab 5 at 46-48 (June disclosure by the appellant), with IAF, Tab 15 at 5-19
(May disclosure by a union official).14
The appellant’s next argument on review implicates the agency’s burden of
proving that it would have taken the same removal action in the absence of his
protected disclosure. PFR File, Tab 1 at 23-24. However, he has once again
presented little more than conclusory disagreement with the administrative
judge’s findings. For example, the appellant alludes to the first Carr factor, the
strength of the agency’s evidence in support of its action, arguing that there was
no evidence to support his removal and the administrative judge abused her
authority to find otherwise. Id. at 23. He made these assertions without
identifying any evidence, precedent, or other support. They are, therefore,
unavailing.
In conclusion, the appellant has failed to present any basis for us to reach a
conclusion different than the initial decision, which sustained his removal.
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.
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.15
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If 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 you16
were affected by an action that is appealable to the Board and that 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: 17
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, 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. 18
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 | Brisbane_Sean_A_DE-0752-20-0072-I-1_Final_Order.pdf | 2024-08-06 | SEAN A. BRISBANE v. DEPARTMENT OF THE ARMY, MSPB Docket No. DE-0752-20-0072-I-1, August 6, 2024 | DE-0752-20-0072-I-1 | NP |
766 | https://www.mspb.gov/decisions/nonprecedential/Besada_Safwat_N_DC-0752-23-0146-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAFWAT NABIL FAWZY BESADA,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
DC-0752-23-0146-I-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Safwat Nabil Fawzy Besada , Ridgewood, New York, pro se.
Dena Panecaldo , Esquire, and Courtney Christensen , Esquire,
Norfolk, 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
sustained the charge of absence without leave and affirmed the agency’s removal
action. On petition for review, the appellant asserts that he was unable to respond
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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 the agency’s emails about his absence for 5 months of his 7-month absence
from duty because he was in Egypt and “did not have [his] medical reports done
yet” because he had not yet received medical treatment. 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. 4
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 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 | Besada_Safwat_N_DC-0752-23-0146-I-1_Final_Order.pdf | 2024-08-06 | SAFWAT NABIL FAWZY BESADA v. DEPARTMENT OF THE NAVY, MSPB Docket No. DC-0752-23-0146-I-1, August 6, 2024 | DC-0752-23-0146-I-1 | NP |
767 | https://www.mspb.gov/decisions/nonprecedential/Hagan_Asamoah_ElizabethDA-315H-21-0174-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ELIZABETH HAGAN ASAMOAH,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
DA-315H-21-0174-I-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elizabeth Hagan Asamoah , Lavon, Texas, pro se.
Bridgette Gibson , Esquire, and Shelley Poe , Esquire, Dallas, Texas, for the
agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction her appeal of her termination from her position
during her probationary period . On petition for review, the appellant asserts that
she “missed” an order issued by the administrative judge and explains that she
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
was unable to procure representation. Petition for Review (PFR) File, Tab 1 at 4.
The appellant also challenges the merits of the agency’s removal action.2 Id.
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 provides additional documents with her petition for review, including an
email that she sent to a potential representative, her initial job offer, and medical
records. PFR File, Tab 1 at 5-16. The appellant provides no explanation as to why she
did not submit this information, 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). In any event,
these documents are not material to the outcome of this appeal. See Russo v. Veterans
Administration, 3 M.S.P.R. 345, 349 (1980) (stating 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). 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 | Hagan_Asamoah_ElizabethDA-315H-21-0174-I-1_Final_Order.pdf | 2024-08-06 | ELIZABETH HAGAN ASAMOAH v. DEPARTMENT OF THE TREASURY, MSPB Docket No. DA-315H-21-0174-I-1, August 6, 2024 | DA-315H-21-0174-I-1 | NP |
768 | https://www.mspb.gov/decisions/nonprecedential/Hamb_Tracie_L_PH-1221-20-0326-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACIE L. HAMB,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-1221-20-0326-W-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Tracie L. Hamb , Daniels, West Virginia, pro se.
Craig Komorowski , Huntington, West 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
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. On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review, the appellant argues the following: (1) the administrative
judge erred in finding that she failed to make a nonfrivolous allegation of a
protected disclosure; (2) the agency’s hiring practices were both discriminatory
and in violation of agency policy and regulations; (3) she was unfamiliar with
e-Appeal Online; and (4) she is in the process of procuring legal counsel.
Petition for Review (PFR) File, Tab 1 at 25-29. 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).
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence2 that she exhausted her remedies before the Office of
Special Counsel (OSC) and make nonfrivolous allegations3 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
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 A nonfrivolous allegation is an assertion that, if proven, could establish the matter at
issue. 5 C.F.R. § 1201.4(s). 2
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 protected disclosure is a disclosure of information
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 or safety. 5 U.S.C. § 2302(b)
(8); Linder v. Department of Justice , 122 M.S.P.R. 14, ¶ 12 (2014). The
disclosures must be specific and detailed, not vague allegations of wrongdoing.
Linder, 122 M.S.P.R. 14, ¶ 14.
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.
The appellant’s assertions do not provide a basis to disturb the initial decision.
The appellant ostensibly asserts that the administrative judge erred in
finding that she failed to make a nonfrivolous allegation of a disclosure described
under 5 U.S.C. § 2302(b)(8). PFR File, Tab 1 at 25-26. To this end, she claims
that the agency failed to select her for a position because she had challenged the
selecting official’s response to the COVID-19 pandemic. Id. However, we3
discern no basis to disturb the administrative judge’s reasoned conclusion that the
appellant failed to make a nonfrivolous allegation of a protected disclosure.
Initial Appeal File (IAF), Tab 9, Initial Decision (ID) at 5-6. Indeed, the only
information in the record regarding the appellant’s purported disclosure was a
letter from OSC indicating that the appellant had alleged making disclosures
about her supervisor’s “lack of action regarding COVID-19.” IAF, Tab 1 at 6.
We agree that this vague allegation of inaction does not amount to a nonfrivolous
allegation of any of the circumstances described in 5 U.S.C. § 2302(b)(8).
See Salerno v. Department of the Interior , 123 M.S.P.R. 230, ¶¶ 2, 7 (2016)
(concluding that the appellant failed to make a nonfrivolous allegation that he
reasonably believed that he had disclosed a violation of law when he made vague
allegations regarding the inadequacy of the agency’s law enforcement
communication security system); see also King v. Department of Veterans Affairs ,
105 M.S.P.R. 21, ¶¶ 11, 14 (2007) (reasoning that the appellant’s bare allegations
that she had reported patient neglect and abuse on certain dates, without any
additional details or context, did not amount to a nonfrivolous allegation of a
protected disclosure). Thus, we discern no basis to disturb the initial decision.
The appellant avers that agency management engaged in a series of
improprieties in the selection process for the position for which she was not
selected. PFR File, Tab 1 at 25-29. To this end, she avers that that agency
engaged in favoritism, violated numerous agency policies and regulations, and
discriminated against certain applicants based on their age. Id. However, insofar
as the appellant does not identify any protected disclosures or activity regarding
these alleged improprieties, a different outcome is not warranted. See Doster v.
Department of the Army , 56 M.S.P.R. 251, 253-54 (1993) (concluding that the
Board lacked jurisdiction when the appellant’s filings contained a litany of
allegations of agency improprieties but failed to allege any disclosures regarding
the same). Indeed, absent an otherwise appealable action, the Board is unable to
consider the appellant’s claim of age discrimination. See Wren v. Department of4
the Army, 2 M.S.P.R. 1, 2 (1980) (explaining that prohibited personnel practices
under 5 U.S.C. § 2302(b) are not an independent source of Board jurisdiction),
aff’d, 681 F.2d 867, 871 -73 (D.C. Cir. 1982).
The appellant seemingly alleges that she was prejudiced by her
unfamiliarity with e-Appeal Online. PFR File, Tab 1 at 25. To this end, she
avers that she was “not familiar with the repository and how to access the
documents in a timely manner until recently.” Id. However, as a registered
e-filer during the adjudication of her initial appeal, IAF, Tab 1 at 2, the appellant
consented to accept all documents issued by other registered e -filers and by the
Board in electronic form, see 5 C.F.R. § 1201.14(e)(1) (2020). She was therefore
required by regulation to ensure that email from @mspb.gov was not blocked by
filters and to monitor her case at the Repository at e-Appeal Online to ensure that
she received all case -related documents. 5 C.F.R. § 1201.14(j)(2)-(3) (2020).
Thus, the appellant’s professed technical issues do not warrant a different
outcome. See Rocha v. Merit Systems Protection Board , 688 F.3d 1307, 1310
(Fed. Cir. 2012) (finding unavailing the pro se appellant’s assertions that he did
not timely receive the initial decision when the appellant was a registered e-filer
and the initial decision was sent to the email address that he provided to the
Board). Moreover, the appellant fails to explain how she was prejudiced by her
apparent inability to timely access Board filings; indeed, we have considered all
of the evidence and argument that the appellant provides on review, and we find
that the record remains devoid of a nonfrivolous allegation of a disclosure
described under 5 U.S.C. § 2302(b)(8) or protected activity described under
5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). See Simnitt v. Department of
Veterans Affairs , 113 M.S.P.R. 313, ¶ 5 (2010) (explaining that 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).
Last, the appellant avers that she is “in the process of potentially selecting
legal representation.” PFR File, Tab 1 at 25. To the extent the appellant argues5
that she was prejudiced by her lack of legal representation before the
administrative judge, a different outcome is not warranted. Indeed, it was the
appellant’s obligation to timely secure legal representation. See Raymond v.
Department of the Army , 102 M.S.P.R. 665, ¶ 4 n.1 (2006) (explaining that the
Board is not required by law, rule, or regulation to appoint counsel for an
appellant).
The appellant provides additional documents with her petition for review;
however, these documents do not warrant a different outcome.
With her petition for review, the appellant provides, for the first time,
handwritten interview notes and an agency handbook on qualification standards
for certain positions. PFR File, Tab 1 at 31-63. However, the appellant provides
no discernable explanation as to why she did not timely provide this evidence to
the administrative judge.4 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).
Moreover, these documents are not material to the outcome of this appeal.
See Russo v. Veterans Administration , 3 M.S.P.R. 345, 349 (1980) (stating 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).
Accordingly, we affirm the initial decision.
4 The appellant seemingly indicates that she received the handwritten interview notes
via a Freedom of Information Act (FOIA) request. PFR File, Tab 1 at 26. To the extent
she alleges that the agency did not respond to her FOIA request until after the close of
the record, a different outcome is not warranted insofar as the notes are not material to
the jurisdictional issue. Id. at 31; see Russo v. Veterans Administration , 3 M.S.P.R.
345, 349 (1980). 6
NOTICE OF APPEAL RIGHTS5
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
5 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of 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.6 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
6 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 10
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Hamb_Tracie_L_PH-1221-20-0326-W-1_Final_Order.pdf | 2024-08-06 | TRACIE L. HAMB v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-1221-20-0326-W-1, August 6, 2024 | PH-1221-20-0326-W-1 | NP |
769 | https://www.mspb.gov/decisions/nonprecedential/McCloud_ContessaAT-1221-22-0314-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CONTESSA MCCLOUD,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-22-0314-W-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Contessa McCloud , Auburn, Alabama, pro se.
Joy Warner , Decatur, 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
dismissed her individual right of action (IRA) appeal for lack of jurisdiction.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
clarify the IRA exhaustion requirement and to find that the appellant exhausted
her claims with the Office of Special Counsel (OSC), we AFFIRM the initial
decision.
BACKGROUND
The appellant is a GS-07 Respiratory Therapist at the agency’s VA Health
Care System in Montgomery, Alabama. Initial Appeal File (IAF), Tab 13 at 83.
According to the appellant, on February 26, 2022, she filed a complaint with OSC
alleging that agency officials took several actions against her in retaliation for
whistleblowing. IAF, Tab 21 at 11-31. Specifically, the appellant appears to
have alleged that the agency, amongst other things, denied her reasonable
accommodation request, issued her a written counseling, and subjected her to a
hostile work environment in retaliation for her prior OSC and equal employment
opportunity (EEO) complaints. IAF, Tab 1 at 11-12, Tab 7 at 3-4. On April 11,
2022, OSC issued letters closing out the appellant’s inquiry and providing her
with Board appeal rights. IAF, Tab 7 at 3-4. On April 2, 2022, the appellant
filed the instant IRA appeal alleging that agency officials retaliated against her2
for making protected disclosures when it denied her request for a reasonable
accommodation. IAF, Tab 1.
The administrative judge issued jurisdictional orders, in which she
acknowledged that the appellant appeared to be claiming retaliation because of
whistleblowing or other protected activity, informed the appellant of her burden
of establishing that she had exhausted her administrative remedies with OSC, and
instructed her to submit evidence and argument demonstrating exhaustion and
Board jurisdiction over her appeal. IAF, Tabs 9, 20. In response, the appellant
submitted numerous documents, including her reasonable accommodation request,
the agency’s denial of that request, an EEO complaint, and what she identifies as
“[her] completed OSC filing from February 26, 2022.” IAF, Tabs 15-19, 21.
After the record on jurisdiction closed, the administrative judge issued an initial
decision dismissing the appeal for lack of jurisdiction without a hearing. IAF,
Tab 24, Initial Decision (ID). She found that the appellant failed to exhaust her
administrative remedies before OSC and determined that, even if the appellant
exhausted her claims with OSC, her disclosures were not within Board
jurisdiction. ID at 11, 14.
The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 2. The agency has responded in opposition to the
appellant’s petition for review, PFR File, Tab 4, and the appellant has replied,
PFR File Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
To establish jurisdiction in a typical IRA appeal, an appellant must show
by preponderant evidence 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 a3
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). On review, the appellant reiterates her below
claims and has not challenged the administrative judge’s findings, and we discern
no basis to disturb them, with the exception of clarifying the exhaustion
requirement in an IRA appeal.
The appellant exhausted her remedies with OSC regarding her claim of retaliation
for her prior OSC and EEO complaints.
The administrative judge found that the appellant “failed to describe or
explain the precise ground of her charge of whistleblowing,” but instead vaguely
alleged “what she perceives to be retaliatory actions.” ID at 11. However, the
Board has clarified that 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. Generally,
exhaustion can be demonstrated through the appellant’s initial OSC complaint,
evidence the original complaint was amended (including but not limited to OSC’s
determination letter and other letters from OSC referencing any amended
allegations), and the appellant’s written responses to OSC referencing the
amended allegations. Mason v. Department of Homeland Security , 116 M.S.P.R.
135, ¶ 8 (2011). Alternatively, exhaustion may be proved through other
sufficiently reliable evidence, such as an affidavit or declaration attesting that the
appellant raised with OSC the substance of the facts in her appeal. Chambers,
2022 MSPB 8, ¶ 11.4
Here, the appellant submitted what she identifies as her February 26, 2022
OSC complaint, which details that she filed EEO complaints and that the agency
denied her reasonable accommodation request. IAF, Tab 21 at 15-31. OSC’s
letter, dated March 22, 2022, informing the appellant of its preliminary finding
that her complaint did not merit further investigation also refers to the appellant’s
allegation that an agency official took multiple actions against her, including
writing her up, providing a letter of counseling, and rejecting her reasonable
accommodation request, in retaliation for her prior EEO reports. IAF, Tab 1
at 11-12. In addition, its closure letter dated April 11, 2022, provided that “[the
appellant] alleged that [she] received written counseling and faced a hostile work
environment in retaliation for reporting sexual harassment to the EEO and the
Office of Resolution Management (ORM).” IAF, Tab 7 at 4. Therefore, contrary
to the administrative judge’s finding, we find that OSC’s March 22 and April 11,
2022 letters are sufficient to establish exhaustion.
The administrative judge correctly found that the appellant failed to
nonfrivolously allege that she made a protected disclosure or engaged in
protected activity.
As noted above, to establish Board jurisdiction in an IRA appeal, an
appellant must, after showing exhaustion, make nonfrivolous allegations that she
engaged in protected activity or made a protected disclosure that was a
contributing factor in the challenged personnel action. Corthell, 123 M.S.P.R.
417, ¶ 8. Here, the administrative judge properly found that, even if the appellant
had exhausted her claim that the agency retaliated against her for filing EEO
complaints before OSC, the Board still lacked jurisdiction over her appeal. ID
at 11-14. In so finding, the administrative judge explained that retaliation for
EEO activity is not redressable in an IRA appeal. ID at 11-13. The appellant
does not challenge this finding on review, and we discern no basis to disturb it.
PFR File, Tabs 1-2; see Edwards v. Department of Labor , 2022 MSPB 9, ¶ 10
(explaining that reprisal for filing an EEO complaint is a matter relating solely to5
discrimination and is not protected by 5 U.S.C. § 2302(b)(8)), aff’d, No.
2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023); see also Young v. Merit
Systems Protection Board , 961 F.3d 1323, 1329 (Fed. Cir. 2020).
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).
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
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 on7
race, color, religion, sex, 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) or8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (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. 9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
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 | McCloud_ContessaAT-1221-22-0314-W-1_Final_Order.pdf | 2024-08-06 | CONTESSA MCCLOUD v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-22-0314-W-1, August 6, 2024 | AT-1221-22-0314-W-1 | NP |
770 | https://www.mspb.gov/decisions/nonprecedential/Barnett_Lewis_E_DC-0752-23-0333-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEWIS E. BARNETT,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
DC-0752-23-0333-I-1
DATE: August 6, 2024
THIS ORDER IS NONPRECEDENTIAL1
Lewis E. Barnett , Columbia, Maryland, pro se.
Barbara Burke , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
¶1The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for lack of jurisdiction. For the reasons discussed
below, we GRANT the appellant's petition for review, VACATE the initial
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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 the case to the New York Field Office for further
adjudication in accordance with this Remand Order.
¶2The administrative judge found that, prior to filing his Board appeal on
March 9, 2023, the appellant’s union, purportedly acting on the appellant’s
behalf, made a binding election on February 2, 2023, to contest a
January 26, 2023 removal decision through a negotiated grievance procedure.
Initial Appeal File (IAF), Tab 18, Initial Decision at 3-4. The administrative
judge concluded that, pursuant to 5 U.S.C. § 7121(e), this election of grievance
procedures precluded his later Board appeal regarding his removal. Id. For the
following reasons, we find that the agency made its operative removal decision on
February 10, 2023, and that his Board appeal is not precluded by the grievance
process that occurred prior to that date.
¶3By letter dated December 28, 2022, the agency proposed to remove the
appellant. IAF, Tab 1 at 7-12, Tab 8 at 8-13. The appellant maintains that he was
not presented with the notice until January 5, 2023. IAF, Tab 14 at 4. On
January 26, 2023, the agency issued a decision to remove the appellant effective
February 7, 2023. IAF, Tab 1 at 3, 42-44, Tab 8 at 5-7. The removal decision
stated that the appellant had chosen not to provide a written or oral reply to the
notice of proposed removal. IAF, Tab 1 at 42, Tab 8 at 5.2
¶4On February 2, 2023, the union filed a Step 3 grievance, purportedly on
behalf of the appellant. IAF, Tab 17 at 10. In the grievance filing, the union
representative asserted that the appellant had been incapacitated during the time
allowed for him to respond to the notice of proposed removal and that the agency
made the decision to terminate him after being notified of his incapacitation. Id.
The union representative argued that, in ignoring the appellant’s incapacitation,
the agency denied him his due process rights. Id. The union representative asked
2 With his initial appeal, the appellant filed a document dated January 24, 2023, that
appears to be a written response to the notice of proposed removal. IAF, Tab 1 at 13-
17. For purposes of this order, deciding the election of remedies issue, we make no
findings on whether or when this document was provided to the agency.2
the agency to reverse the termination and provide the appellant with “his right to
due process.” Id.
¶5A grievance meeting was held on February 8, 2023, during which the
appellant requested to rescind his grievance and provide an oral reply instead.
IAF, Tab 8 at 4, Tab 14 at 4-6, Tab 17 at 14. Per an email memorializing the
meeting, it seems that the agency’s Medical Center Director agreed to provide
a decision by the end of the week based on the appellant’s reply. IAF,
Tab 17 at 14. On February 10, 2023, the union submitted a short, written
statement to the Medical Center Director memorializing the recission of the
grievance and stating that “Mr. Barnett on his own accord, rescinded his
grievance and provided an oral response instead.” Id. at 12.
¶6On February 10, 2023, the Medical Center Director issued a memorandum
bearing the subject line “Oral Reply Decision.” IAF, Tab 8 at 4. The
memorandum noted the appellant’s request to rescind his grievance and provide
an oral response to the notice of proposed removal. Id. The Medical Center
Director further wrote, “I have carefully considered your oral reply and it is my
decision that the sustained charges and the effective date of your removal remain
as indicated in the letter dated January 26, 2023.” Id.
¶7Based on the foregoing, we find that the agency decided to consider and did
consider the appellant’s oral reply on February 8, 2023, in making its final
decision to remove the appellant. Thus, we find that, for election of remedies
purposes, the agency’s final removal decision was made on February 10, 2023,
when the Medical Center Director issued his “Oral Reply Decision.” Id. Based
on the record before us, the first relevant action the appellant took to challenge
the removal decision after that date was to file a Board appeal on March 9, 2023.
There is no indication of any grievance activity after the February 10, 2023
decision. Under these circumstances, we find that the invocation of the grievance
process on or about February 2, 2023, which resulted in the appellant being
allowed to submit an oral reply regarding the proposed removal action, does not3
preclude the appellant’s Board appeal regarding the agency’s subsequent final
removal decision. Cf. Galloway v. Social Security Administration , 111 M.S.P.R.
78, ¶¶ 18-20 (2009) (finding, for purposes of an election of remedies under
5 U.S.C. § 7121(d), that, pursuit of a remedy in one forum regarding a proposed
removal did not preclude a later challenge to the actual removal action in another
forum, absent a clear showing that the parties intended the ongoing process in the
first forum to encompass the final removal action).
¶8The parties have disputed whether the union’s initiation of the grievance
process was truly on the appellant’s behalf and thus binding on the appellant, and
the appellant has asserted that he did not pursue a formal grievance with his union
representative at any time. IAF, Tab 14 at 6. In addition, the agency has argued
that the appellant’s decision to rescind the grievance on February 8, 2023, does
not invalidate the prior binding election of grievance procedures. IAF, Tab 17 at
7. We need not decide these issues given our decision that the agency did not
render its final removal decision until February 10, 2023. The agency, in effect,
reopened its consideration of the notice of proposed removal to consider the
appellant’s reply. On the facts of this case, the appellant was not thereafter
bound to elect the grievance process regarding the agency’s subsequent removal
decision.4
ORDER
¶9For the reasons discussed above, we remand this case to the New York Field
Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.5 | Barnett_Lewis_E_DC-0752-23-0333-I-1_Remand_Order.pdf | 2024-08-06 | LEWIS E. BARNETT v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. DC-0752-23-0333-I-1, August 6, 2024 | DC-0752-23-0333-I-1 | NP |
771 | https://www.mspb.gov/decisions/nonprecedential/Danelishen_Gary_M_CH-1221-23-0169-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GARY MICHAEL DANELISHEN,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
CH-1221-23-0169-W-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Gary Michael Danelishen , Olmsted Township, Ohio, pro se.
Erica Skelly , Akron, Ohio, for the agency.
Alex D. Miller , 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
dismissed his individual right of action (IRA) appeal as barred by the doctrine of
collateral estoppel. On petition for review, the appellant asserts that, by filing
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
this IRA appeal, he is disclosing knowledge of the commission of treason as
required by Federal statute. 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, 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is: 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 | Danelishen_Gary_M_CH-1221-23-0169-W-1_Final_Order.pdf | 2024-08-06 | GARY MICHAEL DANELISHEN v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. CH-1221-23-0169-W-1, August 6, 2024 | CH-1221-23-0169-W-1 | NP |
772 | https://www.mspb.gov/decisions/nonprecedential/Watson_ExzertDE-0831-23-0134-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EXZERT WATSON,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0831-23-0134-I-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Exzert Watson , Aurora, Colorado, pro se.
Tanisha Elliott Evans , 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 final decision by the Office of Personnel Management (OPM)
finding that he was ineligible to receive annuity benefits under the Civil Service
Retirement System (CSRS) because he had applied for and received a refund 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).
his retirement deductions. 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).
¶2Generally, the receipt of a refund of CSRS retirement deductions voids all
annuity rights based on the service for which a refund is made, unless the
employee redeposits the deductions while serving in a position subject to CSRS.
See 5 U.S.C. §§ 8334(d), 8342(a); Youngblood v. Office of Personnel
Management, 108 M.S.P.R. 278, ¶ 12 (2008); Odum v. Office of Personnel
Management, 73 M.S.P.R. 247, 249 (1997), aff’d, 152 F.3d 939 (Fed. Cir. 1998)
(Table).2 On review, the appellant explains that he requested a refund of his
retirement deductions to pay for living expenses and to hire an attorney to contest
his removal. Petition for Review (PFR) File, Tab 1 at 4. This new argument is
not a basis for disturbing the initial decision because it is one the appellant raises
for the first time in his petition for review, and he has not established that it is
2 The initial decision erroneously referred to 5 U.S.C. § 8424(a), which covers another
retirement system not applicable to the appellant, rather than 5 U.S.C. § 8342(a), which
covers CSRS. ID at 4. However, because the criteria for receiving a refund of
retirement contributions are essentially the same under both systems, this error does not
change the outcome of the appeal.2
based on new and material evidence not previously available despite his due
diligence. See Banks v. Department of the Air Force , 4 M.S.P.R. 268, 271
(1980); 5 C.F.R. § 1201.115(d). Moreover, to the extent the appellant is arguing
that he should receive the retirement annuity benefits because of economic duress,
equitable considerations do not provide a basis for awarding benefits not
otherwise authorized by law. Office of Personnel Management v. Richmond ,
496 U.S. 414, 416, 434 (1990); Youngblood, 108 M.S.P.R. 278, ¶ 13; Mahan v.
Office of Personnel Management , 47 M.S.P.R. 639, 641 (1991). The appellant
has not presented arguments or evidence that he was erroneously granted the
refund or that he was mentally incompetent at the time he applied for and
received it. See Wadley v. Office of Personnel Management , 103 M.S.P.R. 227,
¶ 11 (2006).
¶3Accordingly, we deny the petition for review and affirm the initial decision.
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.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.
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. 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 | Watson_ExzertDE-0831-23-0134-I-1_Final_Order.pdf | 2024-08-06 | EXZERT WATSON v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0831-23-0134-I-1, August 6, 2024 | DE-0831-23-0134-I-1 | NP |
773 | https://www.mspb.gov/decisions/nonprecedential/Cunningham_Felicia_AT-844E-20-0572-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FELICIA CUNNINGHAM,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-844E-20-0572-I-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Felicia Cunningham , Oxford, Alabama, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) that denied her application for disability retirement benefits under the
Federal Employees’ Retirement System. Generally, we grant petitions such as
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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 asserted that she was unable to perform the duties of her
position because of various “mental disabilities” including depression and anxiety
caused by migraine headaches. Initial Appeal File (IAF), Tab 1 at 3-4. Below,
the appellant concentrated her arguments on her migraine headaches, and the
medical evidence in the record is focused on that condition. The administrative
judge thus rightly focused his analysis on that claim. IAF, Tab 17, Initial
Decision. We have considered whether the record evidence would support a
finding that the appellant was disabled based on her other stated conditions, but
the record evidence does not support such a finding. Specifically, the mere
diagnosis of depression or an anxiety disorder is not informative enough to allow
either OPM or the Board to conclude, based on the diagnosis alone, that an
employee is disabled from useful and efficient service. See Wilkey–Marzin v.
Office of Personnel Management, 82 M.S.P.R. 200, ¶ 10 (1999) (finding that the
mere existence of diagnosed major depressive disorder and post-traumatic stress
disorder is not, by itself, dispositive evidence of the appellant’s inability to
perform the duties of her position). 2
The appellant claims in her petition for review that the administrative judge
improperly allowed the OPM file, which was untimely filed by 2 days, to remain
in the record.2 Petition for Review (PFR) File, Tab 1 at 4. In the August 21,
2020 Summary of the Prehearing Conference, the administrative judge
specifically noted that OPM’s file was in evidence and provided the appellant an
opportunity to make corrections to the summary. IAF, Tab 15 at 3. The appellant
did not make corrections to the summary or object to the inclusion of OPM’s file
in evidence, and it is too late for her to do so on review. See Gallegos v.
Department of the Air Force , 121 M.S.P.R. 349, ¶ 16 (2014) (stating that the
appellant’s failure to object to an administrative judge’s ruling precludes him
from doing so on review); Miller v. U.S. Postal Service , 117 M.S.P.R. 557, ¶ 7
(2012) (stating that the appellant’s failure to object and make corrections to the
administrative judge’s order precludes her from doing so on review). Moreover,
OPM’s file contains much of the medical evidence which we carefully reviewed
to determine whether the appellant met her burden of proving her entitlement to
disability retirement benefits.3 Thus, the appellant has not shown how the actions
taken by the administrative judge adversely affected her substantive rights. See
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).
The appellant also argues on review that the administrative judge did not
consider her use of sick leave in assessing her entitlement to disability retirement
benefits. PFR File, Tab 1 at 4. The record shows that between December 2017
2 In her petition for review, the appellant describes her argument as a due process claim,
but we do not discern how her due process rights were violated by the administrative
judge accepting OPM’s file into the record. Petition for Review File, Tab 1 at 3.
3 If OPM’s file was not accepted into the record, the record would contain almost no
medical evidence regarding the appellant’s conditions. Because it is her burden to
prove her entitlement to disability retirement benefits, the lack of such evidence could
have harmed the appellant. We do not, however, condone OPM’s failure to timely
submit its file. 3
and August 2019, just prior to her resignation, the appellant used 153 hours of
sick leave, an average of slightly less than 9 hours a month. IAF, Tab 9 at 90-93.
We do not find that the appellant’s sick leave use supports a finding of
entitlement to disability retirement benefits.
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 | Cunningham_Felicia_AT-844E-20-0572-I-1_Final_Order.pdf | 2024-08-06 | FELICIA CUNNINGHAM v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-844E-20-0572-I-1, August 6, 2024 | AT-844E-20-0572-I-1 | NP |
774 | https://www.mspb.gov/decisions/nonprecedential/Voegtle_Trenda_L_SF-844E-21-0037-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRENDA L. VOEGTLE,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
SF-844E-21-0037-I-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Trenda L. Voegtle , Salem, Oregon, pro se.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) that denied her application for retirement under the Federal Employees’
Retirement System (FERS). On petition for review, the appellant makes 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 arguments: the administrative judge’s findings are “faulty and
illogical”; the cases cited by the administrative judge to support his decision are
factually distinguishable; the administrative judge improperly implied that the
appellant’s medication therapy was discontinued due to her improved health; and
restates her argument that her performance is “not useful or efficient and is
inconsistent with work in general,” based on her understanding of the words, and
that she was essentially penalized for being a “good” worker. 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.
The appellant’s arguments on review constitute mere disagreement with the
administrative judge’s well-reasoned findings and do not warrant reversal. See
Yang v. U.S. Postal Service , 115 M.S.P.R. 112, ¶ 12 (2010) (arguments that
constitute mere disagreement with the initial decision do not provide a basis to
grant the petition for review); 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). The administrative judge thoroughly reviewed the
evidence the appellant provided with her disability retirement application and2
with her Board appeal and correctly concluded that the record did not support the
conclusion that her conditions were disabling.
Regarding the appellant’s assertion that the administrative judge
improperly implied that her medication therapy was discontinued due to an
improvement in her health, the administrative judge relied directly on the
language from the appellant’s physician’s notes in making this observation.
Petition for Review (PFR) File, Tab 1 at 4; Initial Appeal File (IAF), Tab 11,
Initial Decision (ID) at 6, 10; see IAF, Tab 7 at 97 (noting that, as of June 22,
2020, the appellant “continues to clinically improve,” and that unless she
clinically declined or had repeat positive acid-fast bacteria cultures, she should
“still continue to plan to discontinue therapy in September [2020]”).
With respect to her argument that a number of cases cited in the initial
decision are factually distinguishable, we do not find any reason to disturb the
administrative judge’s findings. PFR File, Tab 1 at 4; ID at 2-4, 9-10 (citing
Vanieken-Ryals v. Office of Personnel Management , 508 F.3d 1034, 1041 (Fed.
Cir. 2007); Angel v. Office of Personnel Management , 122 M.S.P.R. 424, ¶ 14
(2015); Henderson v. Office of Personnel Management , 109 M.S.P.R. 529, ¶ 19
(2008); Tan-Gatue v. Office of Personnel Management , 90 M.S.P.R. 116, ¶ 11
(2001); and Davis v. Office of Personnel Management , 64 M.S.P.R. 1, 3-4
(1994)). The citations to the identified cases merely defined the applicable legal
standards for “useful and efficient service,” identified the types of evidence an
applicant for disability retirement can provide to support his or her application
and explained how each type of evidence is weighed, and observed that a
condition that was not previously disabling could later become disabling. ID
at 2-4, 9-10. None of the cases were cited because of any purported factual
similarity to the appellant’s circumstances. Therefore, we DENY the petition for
review and AFFIRM the initial decision, which is now the Board’s final decision.
5 C.F.R. § 1201.113(b). 3
NOTICE OF APPEAL 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.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.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. 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 | Voegtle_Trenda_L_SF-844E-21-0037-I-1_Final_Order.pdf | 2024-08-06 | TRENDA L. VOEGTLE v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. SF-844E-21-0037-I-1, August 6, 2024 | SF-844E-21-0037-I-1 | NP |
775 | https://www.mspb.gov/decisions/nonprecedential/Ewing_QuintonCH-844E-21-0328-I-1_FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
QUINTIN EWING,1
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-844E-21-0328-I-1
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL2
Michael Kleinman , Esquire, Houston, Texas, for the appellant.
Jo Bell , 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.
1 The Board finds it appropriate to change the caption of this matter from “Quinton
Ewing” to “Quintin Ewing” to correct the misspelling of the appellant’s first name.
Additionally, the initial decision in this matter has been recaptioned as “Quintin Ewing”
and a reference to the appellant’s name in the initial decision has been changed to
“Quintin Ewing.”
2 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and 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
affirmed3 the reconsideration decision of the Office of Personnel Management
(OPM) denying his disability retirement application under the Federal
Employees’ Retirement System (FERS). 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. We AFFIRM the initial
decision as MODIFIED to VACATE the administrative judge’s statement that the
appellant could compensate for his mental impairments by working through lunch
and to clarify that the appellant has failed to prove that accommodation of his
medical conditions is unreasonable.
BACKGROUND
The appellant was employed as a GS-0185 Clinical Social Worker with the
Department of the Army from 2007 until January 2019, when he was transferred
to a position as a GS-0185 Clinical Social Worker with the Department of
Veterans Affairs in Springfield, Missouri. Initial Appeal File (IAF), Tab 29 at 9,
3 The initial decision states erroneously that “[t]he appeal is DISMISSED.” Initial
Appeal File, Tab 44, Initial Decision at 13. This appears to be a typographical error. 2
12, Tab 34 at 13-14. The agency removed the appellant from this position in
July 2019 based on the charge of failure to meet competency standards after a
Focused Professional Practice Evaluation identified numerous deficiencies in the
treatment records of the appellant’s patients. IAF, Tab 34 at 52-59. In
January 2020, the appellant applied for disability retirement under FERS, alleging
disability due to attention deficit hyperactivity disorder (ADHD), dyslexia, and
torticollis. IAF, Tab 29 at 15, 22. He alleged that an increase in the number of
clinical appointments and paperwork required for his position exacerbated his
preexisting anxiety and, consequently, his dyslexia. IAF, Tab 29 at 5-6, 22,
Tab 30 at 12.
He submitted a Report of Comprehensive Psychological Evaluation from
Dr. C., dated May 2019, and another letter from Dr. C., dated November 2019, in
support of his application. IAF, Tab 29 at 23, 27-84. OPM denied his application
on June 8, 2020, and, upon reconsideration, on August 14, 2020. IAF, Tab 34
at 8-11, 25-29. The appellant filed an initial appeal to the Board challenging
OPM’s decision, which was dismissed on February 17, 2021, because OPM
informed the Board that it was rescinding its final decision to allow for review of
new evidence submitted by the appellant. Ewing v. Office of Personnel
Management, MSPB Docket No. CH-844E-20-0589-I-1, Initial Decision (Feb. 17,
2021). OPM issued its final decision on November 15, 2021, finding that the
appellant failed to establish that he met the criteria for disability retirement
because he did not establish that his preexisting medical conditions significantly
worsened while serving in a FERS-covered position. IAF, Tab 23 at 4-8.
In his prehearing submission, the appellant produced additional evidence in
the form of a letter from Dr. C., dated March 1, 2021, and a brief statement by
another provider who evaluated the appellant on August 3, 2021, and prescribed
medications for generalized anxiety disorder and major depressive disorder. IAF,
Tab 31 at 230-34, 252. On February 1, 2022, the administrative judge held a
telephonic hearing at which the appellant and Dr. C. testified. IAF, Tab 42,3
Hearing Recording (HR). The administrative judge issued an initial decision on
March 25, 2022, finding that the appellant failed to show that his preexisting
medical conditions were exacerbated to a degree that rendered him incapable of
performing useful and efficient service as a Clinical Social Worker and, thus,
failed to carry his burden of proving entitlement to disability retirement under
FERS. IAF, Tab 44, Initial Decision (ID) at 9, 12.
The appellant has filed a petition for review, disputing the administrative
judge’s analysis. Petition for Review (PFR) File, Tab 1. OPM has not responded
to appellant’s petition for review.
ANALYSIS
The appellant bears the burden of proving by preponderant evidence his
entitlement to disability retirement benefits. Henderson v. Office of Personnel
Management, 109 M.S.P.R. 529, ¶ 8 (2008); 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) he must have completed at least 18 months of
creditable civilian service; (2) he, while employed in a position subject to FERS,
must have become disabled because of a medical condition resulting in a
deficiency in performance, conduct, or attendance, or, if there is no such
deficiency, the disabling medical condition must be incompatible with either
useful and efficient service or retention in the position; (3) the disabling medical
condition must be expected to continue for at least 1 year from the date
the disability retirement benefits application is filed; (4) accommodation of the
disabling medical condition in the position held must be unreasonable; and (5) he
must not have declined a reasonable offer of reassignment to a vacant position.
Henderson, 109 M.S.P.R. 529, ¶ 8.
The Bruner presumption does not apply.
On petition for review, the appellant argues that the administrative judge
erred in failing to apply the Bruner presumption, which provides that an4
employee’s removal for physical inability to perform the essential functions of his
position constitutes prima facie evidence that he is entitled to disability
retirement, shifting the burden of production to OPM. PFR File, Tab 1 at 10 -14;
see Marczewski v. Office of Personnel Management , 80 M.S.P.R. 343, ¶ 4 (1998)
(citing Bruner v. Office of Personnel Management , 996 F.2d 290, 294 (Fed. Cir.
1993)). The administrative judge did not afford the appellant the Bruner
presumption; however, he did not specifically address its inapplicability despite
the appellant having raised this issue. ID at 6-7; IAF, Tab 29 at 4; HR (the
appellant’s closing argument). We find that the appellant is not entitled to the
Bruner presumption because the agency removed him for failure to meet
competency standards—not inability to perform job duties due to a medical
condition. IAF, Tab 34 at 52-59; see Combs v. Social Security Administration ,
91 M.S.P.R. 148, ¶ 21 (2002) (stating that a charge of inability to perform job
duties is a distinct charge requiring medical evidence showing that an employee is
incapacitated). Neither the agency’s proposal notice nor its decision notice
reveals any consideration of the appellant’s medical condition in its decision to
remove the appellant . IAF, Tab 34 at 52-59. Therefore, the Bruner presumption
does not apply. Cf. Ayers-Kavtaradze v. Office of Personnel Management ,
91 M.S.P.R. 397, ¶ 11 (2002) (applying Bruner when the agency’s specifications
accompanying the charge indicated its decision was based on medical
documentation establishing disability).
The appellant failed to establish criterion (4): accommodation of his disabling
medical condition in the position held must be unreasonable.
The administrative judge concluded that the appellant did not show by
preponderant evidence that his preexisting medical conditions of ADHD,
dyslexia, torticollis, and/or anxiety were exacerbated to a degree that caused a
deficiency in his performance, conduct, or attendance, or that his conditions were
incompatible with useful and efficient service or retention in the position of
Clinical Social Worker. ID at 9-12; see Henderson, 109 M.S.P.R. 529, ¶ 8 . The5
appellant challenges the administrative judge’s weighing of the evidence for this
finding. PFR File, Tab 1 at 9-17 . Based on the totality of the evidence, we credit
the appellant’s assertion that his preexisting conditions of ADHD, dyslexia, and
anxiety4 became incompatible with new workloads, procedures, or technology
without accommodation. PFR File, Tab 1 at 9-17; IAF, Tab 29 at 27-84, Tab 31
at 230-34; HR (testimony of Dr. C.). However, assuming without deciding that
these circumstances satisfy criterion (2), that the appellant become disabled
because of a medical condition while employed under FERS, we find that the
appellant has not satisfied his burden with respect to criterion (4),
accommodation of the disabling medical condition in the position held must be
unreasonable. See Henderson, 109 M.S.P.R. 529, ¶ 8.
An appellant whose disability can be reasonably accommodated by the
employing agency has not met his burden of establishing entitlement to disability
retirement benefits. Dec v. Office of Personnel Management , 47 M.S.P.R. 72, 79
(1991). The appellant argues that an increase in the amount of paperwork
required of him after transferring to a new agency in January 2019 exacerbated
his anxiety and, consequently, his dyslexia. IAF, Tab 29 at 5, Tab 30 at 12. As
noted by the administrative judge, the appellant passed on the agency’s offer of
dictation software in February 2019—one of the accommodations that Dr. C.
opined would enable him to “neutralize” the effect of dyslexia on his job
performance in May 2019.5 ID at 11; IAF, Tab 29 at 84, 116. After declining the
offer of dictation software in February 2019, stating that it was not yet necessary,
he requested an accommodation for reduced clinical hours and additional training
4 In his petition for review, the appellant continues to list torticollis as one of his
medical conditions. PFR File, Tab 1 at 7, 8. However, he does not specifically
challenge the administrative judge’s finding, based on the appellant’s testimony, that
his symptoms of torticollis were adequately managed with medication. ID at 8-9. We
observe no reason to disturb this finding.
5 Dr. C. also recommended accommodations of alternative modes of acquiring
information, such as access to recorded materials, and the provision of extra time to
perform reading and writing-related tasks. IAF, Tab 29 at 84.6
on clinical notetaking in May 2019; however, the agency removed the appellant
and certified that it had not determined whether any accommodation was possible
because the appellant had not provided medical evidence.6 IAF, Tab 29 at 84, 89,
116-17. In his petition for review, the appellant argues that he “ran out of time”
to try the dictation software offered by the agency because it chose to remove
him, thereby “refus[ing] to accommodate him.” PFR File, Tab 1 at 15; IAF,
Tab 29 at 8, Tab 30 at 13; HR (testimony of the appellant). However, the
relevant question is whether the agency is unable to reasonably accommodate the
appellant, not whether it has refused to accommodate him, and we find that the
appellant has not proven the former. See Dec, 47 M.S.P.R. at 79.
The appellant presents Dr. C.’s March 1, 2021 opinion that no
accommodation would have enabled the appellant to be fully successful in his
position, which was drafted in response to OPM’s denial of his disability
application. IAF, Tab 31 at 230, 234. We find this opinion unpersuasive because
it is unsupported and inconsistent with his May 2019 opinion, which was
contemporaneous with his psychological evaluation of the appellant. IAF, Tab 29
at 83-84. We find that the appellant has not proven that the agency was unable to
accommodate his medical conditions with dictation software and/or other
accommodations.
Lastly, we note the appellant’s argument on review that the administrative
judge penalized him for having worked successfully with underlying disabilities
by using compensation strategies in prior, equivalent Social Worker positions.
PFR File, Tab 1 at 17; ID at 9-12. To the extent that the administrative judge
suggests that the appellant should have employed compensation strategies that
6 An agency is not required to lower a production standard; however, it may do so if it
wishes. Equal Employment Opportunity Commission Enforcement Guidance on
Reasonable Accommodation and Undue Hardship under the Americans with Disabilities
Act, Notice No. 915.002, (Oct. 17, 2002),
http://www.eeoc.gov/policy/docs/accommodation.html (last visited Aug. 6, 2024).
Furthermore, an agency is not required to provide the reasonable accommodation that
the individual wants, but it may choose among reasonable accommodations as long as
the chosen accommodation is effective. Id. 7
allowed him to perform successfully in the past, such as working through lunch,
we vacate this finding. ID at 10, 12.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 on9
race, color, religion, sex, 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) or10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Ewing_QuintonCH-844E-21-0328-I-1_FInal_Order.pdf | 2024-08-06 | null | CH-844E-21-0328-I-1 | NP |
776 | https://www.mspb.gov/decisions/nonprecedential/Lesko_Paul_D_DE-0841-19-0106-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PAUL D. LESKO,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DE-0841-19-0106-I-2
DATE: August 6, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Paul D. Lesko , Albuquerque, New Mexico, pro se.
Michael Shipley , 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
affirmed the final decision of the Office of Personnel Management (OPM)
denying his request to make a deposit to obtain retirement credit for civilian
service in 1982. 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. Except as expressly MODIFIED to
consider evidence that the appellant was not a Federal employee in 1982, we
AFFIRM the initial decision.
BACKGROUND
The appellant was employed as a physician by the Department of Veterans
Affairs (VA) between 2009 and 2017. Lesko v. Office of Personnel Management ,
MSPB Docket No. DE-0841-19-0106-I-1, Initial Appeal File (IAF), Tab 7 at 36.
Following his retirement in 2017, he sought to make a deposit to obtain Federal
Employees Retirement System (FERS) retirement credit for civilian service that
he alleges he completed with the VA as a surgical resident between 1980 and
1982. Id. at 8, 15. In response to his request, OPM informed him that his service
in 1982 was performed “under a temporary appointment during which no
retirement deductions were withheld” from his salary. Id. at 7. OPM also stated
that it did not have enough information to give credit for the time “worked as a
student in 1982.”2 Id.
2 OPM was able to obtain detailed earnings information regarding the appellant’s
service with the VA in 1980 and 1981. IAF, Tab 7 at 8. It appears that the appellant
was permitted to make a deposit for that service and that his annuity reflects such
service. Id. at 10. 2
The appellant appealed OPM’s final decision to the Board, asserting that he
worked as an orthopedic surgery resident at a San Francisco, California VA
hospital from January 1, 1982 through December 31, 1982, and that he was not a
student. IAF, Tab 1 at 2. He also claims that he sought, but was unable to obtain,
records from his local Social Security Administration (SSA) office showing his
1982 service, and that he did not understand why there was no record of his
service. Id.
Because the appellant constructively withdrew his initial request for a
hearing, IAF, Tab 1 at 4; Lesko v. Office of Personnel Management , MSPB
Docket No. DE-0841-19-0106-I-2 Appeal File (I-2 AF) Tab 5 at 1,3 the
administrative judge issued an initial decision on the written record, I-2 AF,
Tab 8, Initial Decision (ID) at 1. He concluded that, despite sufficient
opportunity, the appellant failed to produce documentary evidence that he was
entitled to FERS retirement credit for service in 1982. ID at 2. He also found
that OPM’s records were “reliable and accurate.” Id. Accordingly, he found that
the appellant failed to prove his entitlement to make a deposit for Federal service
in 1982, and he affirmed OPM’s final decision. ID at 3.
The appellant has filed a petition for review, wherein he essentially
resubmits an identical pleading to one he submitted below, reasserting that he was
employed as an orthopedic surgery resident and that he diligently sought to locate
records that reflect that his 1982 service entitles him to FERS retirement credit
for which he may make a subsequent deposit. Petition for Review (PFR) File,
Tab 1. The agency has responded. PFR File, Tab 3.
3 In a June 26, 2019 Order and Summary of Telephonic Status Conference, the
administrative judge noted that the parties focused on the submission of a written
closing argument, which “presupposed the appellant waived a formal hearing.” I-2 AF,
Tab 4 at 2. The administrative judge stated in that order that he would conclude that the
appellant was waiving a hearing unless the appellant informed the administrative judge
to the contrary by July 3, 2019. When the appellant did not respond, the administrative
judge concluded that the appellant waived his right to a hearing. I-2 AF, Tab 5 at 1.
The appellant does not complain about this ruling on review. Petition for Review File,
Tab 1. 3
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant, as an applicant, bears the burden of proving his entitlement
to make a service credit deposit by preponderant evidence. See generally
Muyco v. Office of Personnel Management , 114 M.S.P.R. 694, ¶ 11-12 (2010);
see also Gadue v. Office of Personnel Management , 96 M.S.P.R. 285, ¶ 5 (2004)
(stating that in an appeal in which the appellant is claiming entitlement to
retirement benefits and is appealing an OPM decision concerning those benefits,
the appellant bears the burden of proving by preponderant evidence his
entitlement to the benefits he seeks); 5 C.F.R. § 1201.56(b)(2)(ii). The
appellant’s entitlement to an annuity, as well as his right to make a service credit
deposit under FERS, are governed by chapter 84 of Title 5 of the U.S. Code. Two
types of Federal service are pertinent to a determination of whether an individual
is entitled to a retirement annuity based on a period of Federal service
—“creditable service” and “covered service.” See Noveloso v. Office of
Personnel Management , 45 M.S.P.R. 321, 323 (1990) (concerning the Civil
Service Retirement System), aff’d, 925 F.2d 1478 (Fed. Cir. 1991) (Table).
Almost all Federal civilian service is creditable service. Id. Covered service is
more limited in scope. Id. To be covered under FERS, an individual must
“[h]ave retirement deductions withheld from pay and have agency contributions
made,” or make a retroactive deposit of a specified percentage of the basic pay
for the service at issue plus interest. See 5 U.S.C. § 8411(f)(2); 5 C.F.R.
§§ 842.103(c), 842.304(a)(2)(iii), 842.305(a), (d) -(e).
As discussed above, OPM’s final decision denied the appellant’s request to
make a deposit for his 1982 service on the basis that he was serving as a student
under a temporary appointment. IAF, Tab 7 at 7. In response to the appellant’s
appeal of that decision, however, OPM appears to have articulated a different
basis for its denial of the appellant’s request to make a deposit, asserting that it
had “no information” that the appellant was employed by the Federal Government
at all in 1982. Id. at 4. In support of this claim, OPM submitted documents4
showing that, during 1982, the appellant was paid by the County of Alameda
Auditor’s Office and the VA’s affiliated university, the University of California,
San Francisco (UCSF).4 Id. at 19-21. In a pleading below, the appellant
conceded that, while he was a surgical resident with the VA in 1982, UCSF could
have “conceivably” paid his salary. I-2 AF, Tab 7 at 2. Moreover, despite his
efforts to obtain adequate records from OPM, the Internal Revenue Service, SSA,
the Orthopedic Department at UCSF, and the VA’s San Francisco hospital to
demonstrate that he was entitled to credit for his 1982 service, he was unable to
do so. Id.; PFR File, Tab 1 at 2. Indeed, there is no evidence in the record that
the appellant was an employee paid by the VA as a Federal employee in 1982.5
IAF, Tab 7 at 19-20. Thus, based on the evidence before us, it appears that the
appellant was not a Federal employee in 1982.
Based on the foregoing, it seems as though OPM should have denied the
appellant’s request to make a deposit to obtain service credit on the basis that he
was not a Federal employee.6 Nonetheless, we agree with the administrative
judge that the appellant failed to prove by preponderant evidence that he is
entitled to retirement benefits based on his service at the VA hospital in San
Francisco in 1982. ID at 3; see Office of Personnel Management v. Richmond,
496 U.S. 414, 423-24, 434 (1990) (concluding that payment of an annuity that
4 These records show that the appellant was on the VA’s payroll during 1980 and 1981,
IAF, Tab 7 at 19-20, which seemingly corroborates OPM’s decision to permit him to
make a deposit to obtain credit for that service, see supra n.2.
5 We have no reason to doubt that the appellant performed medical services in a VA
facility or that he treated patients of the VA, but it appears that he did so not as an
employee of the Federal Government.
6 To the extent OPM’s failure to inform the appellant in the final decision that a basis
for its denial of his request to make a deposit to obtain FERS service credit for 1982
was the absence of evidence showing that he was even a Federal employee that year
constitutes error, such error was cured when it presented this argument before the
administrative judge, giving the appellant sufficient opportunity to respond to it. See
generally Parker v. Department of Housing & Urban Development , 106 M.S.P.R. 329,
¶ 8 (2007) (providing that lack of proper notice in the context of what is required to
establish Board jurisdiction over an appeal may be cured by an agency’s subsequent
pleadings). 5
would be in direct contravention of the Federal statute upon which the applicant’s
ultimate claim to the funds must rest would violate the Appropriations Clause of
the Constitution); 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) .
Accordingly, we modify the initial decision to reflect the above-discussed
analysis, and we affirm OPM’s final decision on that basis. See, e.g., Gadue,
96 M.S.P.R. 285 (affirming as modified both the administrative judge’s initial
decision and OPM’s reconsideration decision but supplementing those decisions
with additional material analysis).
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 obtain7
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 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.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Lesko_Paul_D_DE-0841-19-0106-I-2_Final_Order.pdf | 2024-08-06 | PAUL D. LESKO v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DE-0841-19-0106-I-2, August 6, 2024 | DE-0841-19-0106-I-2 | NP |
777 | https://www.mspb.gov/decisions/nonprecedential/Miller_CeceliaDC-3443-21-0048-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CECELIA MILLER,
Appellant,
v.
AGENCY FOR INTERNATIONAL
DEVELOPMENT,
Agency.DOCKET NUMBER
DC-3443-21-0048-I-2
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cecelia Miller , Waldorf, Maryland, pro se.
Kenneth M. Bledsoe , Esquire, and James Truong , 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
dismissed her October 23, 2020 appeal from a final agency decision in her
discrimination complaint as untimely filed without good cause shown. On
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
petition for review, the appellant renews her argument that her demanding work
schedule prevented her from meeting the filing deadline. She additionally asserts,
without legal support, that the administrative judge was precluded from ruling on
the timeliness of her appeal because the issue was not addressed in the earlier
initial decision that dismissed the appeal without prejudice. 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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.2
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The3
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file4
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction.3 The court of appeals must receive your
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
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.6 | Miller_CeceliaDC-3443-21-0048-I-2_Final_Order.pdf | 2024-08-05 | CECELIA MILLER v. AGENCY FOR INTERNATIONAL DEVELOPMENT, MSPB Docket No. DC-3443-21-0048-I-2, August 5, 2024 | DC-3443-21-0048-I-2 | NP |
778 | https://www.mspb.gov/decisions/nonprecedential/Bryant_James_W_DC-315H-23-0143-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES WILLIAMS BRYANT,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Agency.DOCKET NUMBER
DC-315H-23-0143-I-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
James Williams Bryant , Washington, D.C., pro se.
David P. Simmons , 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 this probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues that he previously worked for the Federal
Government for 5 years, and he served a probationary period in his earlier service
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
with the Department of the Navy and the Department of the Army. Petition for
Review (PFR) File, Tab 1 at 4. He also argues that he was prejudiced because the
agency refused to turn over his personnel records that it had in its possession. Id.
at 5. Finally, he argues that the administrative judge rushed to judgment. Id.
at 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).
¶2We have reviewed the record, but for the reasons stated in the initial
decision, we agree that the appellant has not made a nonfrivolous allegation that
he served a probationary period in any prior position with the Department of the
Navy or the Department of the Army. Thus, he has not made a nonfrivolous
allegation that he is an employee as described in 5 U.S.C. § 7511(a)(1)(A)(i).
The appellant does not challenge the administrative judge’s finding that he did
not make a nonfrivolous allegation that he is an employee pursuant to 5 U.S.C.
§ 7511(a)(1)(A)(ii) or that he failed to make a nonfrivolous allegation that his
termination was due to discrimination based on partisan political reasons or
marital status or pre-appointment reasons. We affirm the initial decision in this
regard. 2
¶3Finally, we discern no error with the administrative judge’s decision to
issue an initial decision based on the existing documentation in the record.
Moreover, based on the statements of the agency attorney, made under penalty of
perjury, we discern no impropriety with the agency’s production of documents in
its possession relative to this matter.
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 | Bryant_James_W_DC-315H-23-0143-I-1_Final_Order.pdf | 2024-08-05 | JAMES WILLIAMS BRYANT v. DEPARTMENT OF AGRICULTURE, MSPB Docket No. DC-315H-23-0143-I-1, August 5, 2024 | DC-315H-23-0143-I-1 | NP |
779 | https://www.mspb.gov/decisions/nonprecedential/Greene_Matthew_E_DE-3330-20-0281-I-1_FInal_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MATTHEW E. GREENE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
DE-3330-20-0281-I-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew E. Greene , Lincoln, Nebraska, pro se.
Timothy Jones , Esquire, Fort Gregg-Adams, 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
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) on the basis that his veterans’ preference
complaint was untimely before the Department of Labor (DOL). Generally, we
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED to clarify that the appellant’s DOL complaint was untimely
with respect to both nonselections at issue, we AFFIRM the initial decision.
BACKGROUND
The appellant, a preference eligible veteran, applied for two positions with
the agency, one in December 2017, and one in September 2018. Initial Appeal
File (IAF), Tab 1 at 1, 6, Tab 6 at 3. He was not selected for either position.
IAF, Tab 6 at 3. At some point in 2020 (the exact date is not clear), the appellant
filed a complaint with DOL, alleging a violation of his veterans’ preference rights
in connection with these two nonselections. IAF, Tab 1 at 6. DOL dismissed the
complaint as untimely, and the appellant filed the instant Board appeal. Id.
at 3-4, 6.
The administrative judge issued an order notifying the appellant of the
general jurisdictional and timeliness standards for a VEOA appeal, including the
standard for equitable tolling, and ordered him to file evidence and argument on
the issue. IAF, Tab 3. In this order, she specifically directed the appellant to file
a statement showing the dates of the alleged veterans’ preference violations, the2
date he filed his complaint with DOL, and the date he received DOL’s decision.
Id. at 6. The administrative judge ordered the agency to respond as well and to
file any evidence it had on the exhaustion, timeliness, and other jurisdictional
issues. Id. at 7. After both parties responded, the administrative judge issued an
initial decision denying the appellant’s request for corrective action as untimely
filed with DOL. IAF, Tab 10, Initial Decision (ID).
The appellant has filed a petition for review and a supplement to the
petition. Petition for Review (PFR) File, Tabs 1, 5. The agency has not filed a
response.
ANALYSIS
A complaint under 5 U.S.C. § 3330a must be brought within 60 days of the
alleged veterans’ preference violation. 5 U.S.C. § 3330a(a)(2)(A). Failure to
meet the 60-day statutory deadline for filing a DOL complaint will result in a
denial of corrective action unless the appellant can establish a basis for equitably
tolling the deadline. See Gingery v. Office of Personnel Management ,
119 M.S.P.R. 43, ¶¶ 15-19 (2012). The doctrine of equitable tolling is narrow,
limited to situations in which the complainant actively pursued his judicial
remedies by filing a defective pleading during the statutory period, or he was
induced or tricked by his adversary’s misconduct into allowing the filing deadline
to pass. Irwin v. Veterans Administration , 498 U.S. 89, 96 (1990); Roesel v.
Peace Corps, 111 M.S.P.R. 366, ¶ 8 (2009). Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements: (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way. Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005). The principles
of equitable tolling do not extend to ordinary cases of excusable neglect. Irwin,
498 U.S. at 96; Wood v. Department of the Air Force , 54 M.S.P.R. 587, 593
(1992).3
In this case, the administrative judge found, based on the appellant’s initial
appeal form, that he learned of the first nonselection on December 12, 2017. IAF,
Tab 1 at 3; ID at 2. Without knowing exactly when the appellant filed his DOL
complaint, the administrative judge used the April 21, 2020 date of DOL’s initial
response. ID at 5 n.2. Based on this information, the administrative judge found
that the appellant’s DOL complaint was due no later than February 10, 2018, and
that his April 21, 2020 complaint was therefore at least 861 days untimely.2 ID
at 5. The administrative judge also found that the appellant provided no basis to
toll the deadline. ID at 5. The reason that the appellant gave for his late filing
was that he learned for the first time during a related equal employment
opportunity (EEO) investigation that the selecting official failed to consider his
veterans’ preference. ID at 5; IAF, Tab 6 at 3. However, the administrative
judge found that the law does not allow for a delay in filing a veterans’
preference complaint while the complainant awaits the outcome of other
proceedings and that the appellant otherwise identified no basis for equitable
tolling. ID at 5.
On petition for review, the appellant argues that he was tricked by the
agency’s misconduct, “stating not referred for the position. Yet, the package that
was submitted did not have my VP.” PFR File, Tab 1 at 4. Construing this pro se
appellant’s petition in the most favorable light, we take this to mean that he did
not become aware until after he filed his EEO complaint that the agency failed to
apply veterans’ preference in its selection process. However, the discovery of
2 On his initial appeal form, the appellant identified May 1, 2018, as the date of his
DOL complaint. IAF, Tab 1 at 4. However, as the administrative judge recognized,
this cannot be correct because DOL’s initial response to the complaint is dated April 21,
2020. ID at 5 n.2; IAF, Tab 1 at 20. Therefore, for purposes of her calculation, the
administrative judge assumed that the appellant filed his DOL complaint on April 21,
2020. ID at 5 &n.2. In reality, the appellant’s DOL complaint was almost certainly
filed earlier, but he has not objected to the administrative judge’s use of that date, and
he has still not provided the correct date on review. In any event, regardless of whether
the appellant filed his DOL complaint on April 21, 2020, or sometime earlier in the
year, it would still be significantly untimely with respect to both nonselections.4
new evidence generally does not constitute the type of extraordinary circumstance
that warrants tolling a statutory deadline, especially when there is no indication
that the evidence was previously unavailable because the agency improperly
concealed it. Heimberger v. Department of Commerce , 121 M.S.P.R. 10, ¶ 11
(2014). It is undisputed that the vacancies at issue were announced under merit
promotion procedures. IAF, Tab 1 at 20, Tab 6 at 8; PFR File, Tab 5 at 4-6.
Therefore, veterans’ preference did not apply, see Wheeler v. Department of
Defense, 113 M.S.P.R. 376, ¶ 6 (2010), and the agency cannot be said to have in
any way tricked the appellant by failing to inform him that it did not apply
veterans’ preference in the selection process. Moreover, there is no indication
that the appellant even attempted to seek information from the agency about the
precise basis for his nonselection until well after the statutory deadline had
passed. We, therefore, find that the appellant did not diligently pursue his appeal
rights during the filing period.
The appellant further argues that he read on the Board’s website that, if
there is a formal EEO case, “this could be used in the approval of a VEOA
appeal.” PFR File, Tab 1 at 5. We are not certain exactly what information on
the Board’s website the appellant is citing, but we agree with the administrative
judge that the appellant’s participation in the EEO process does not act to toll the
statutory time limit. ID at 5.
The appellant also argues that the agency failed to file the evidence
required in response the administrative judge’s order on jurisdiction and
timeliness. PFR File, Tab 1 at 3-4. We agree with the appellant that the agency
seems not to have submitted the evidence that the administrative judge ordered,
which would include, at a minimum, evidence regarding its selections for the two
vacancies at issue and the dates on which it informed the appellant of his
nonselections. However, the appellant did not raise an objection on this issue
below. Nor has he shown that the agency’s failure to provide this information5
prejudiced his substantive rights. See Harrison v. Office of Personnel
Management, 57 M.S.P.R. 89, 91 n.1 (1993).
In his supplement to the petition for review, the appellant has filed the
certificates of eligibles for the two vacancy announcements, as well as his own
résumé alongside the résumés of the selectees. PFR File, Tab 5. However, this
evidence, along with the remaining arguments in the petition for review, goes to
the merits of the appellant’s claim. PFR File, Tab 1 at 5. They do not address the
dispositive issue of timeliness before DOL.
We note that the initial decision specifically addressed the timeliness of the
appellant’s DOL complaint with respect to his 2017 nonselection but not with
respect to his 2018 nonselection. ID at 5. It would appear that this was due to
the absence of a precise date for the 2018 nonselection. We modify the initial
decision to make clear that the appellant failed to prove that his DOL complaint
was timely with respect to either nonselection. The evidence that the appellant
submitted on review shows that the 2018 nonselection occurred no later than
September 25, 2018. PFR File, Tab 5 at 4. Sixty days from that date was
November 24, 2018, and therefore, the appellant’s 2020 complaint to DOL was
untimely by more than 1 year. For the reasons explained in the initial decision,
we agree with the administrative judge that the appellant has not identified any
unusual circumstances that might warrant equitable tolling. ID at 5.
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
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
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. 7
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, 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 the8
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 of9
review within 60 days of the date of issuance of this decision. 5 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. 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 | Greene_Matthew_E_DE-3330-20-0281-I-1_FInal_Order.pdf | 2024-08-05 | MATTHEW E. GREENE v. DEPARTMENT OF DEFENSE, MSPB Docket No. DE-3330-20-0281-I-1, August 5, 2024 | DE-3330-20-0281-I-1 | NP |
780 | https://www.mspb.gov/decisions/nonprecedential/Ide_Carol_L_CH-0752-19-0362-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CAROL LYNN IDE,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
CH-0752-19-0362-I-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Michael W. DeWitt , Esquire, Columbus, Ohio, for the appellant.
Eric Y. Hart , Esquire, Indianapolis, Indiana, 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 and found that she failed to establish her affirmative
defenses. 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
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).
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 administrative judge’s analysis of the appellant’s disability
discrimination claim and her claim of retaliation for requesting reasonable
accommodation, we AFFIRM the initial decision.
The appellant was employed as Executive Assistant to the Deputy Director
and Director of Civilian Pay at the agency’s Civilian Pay Operations office. The
agency removed her based on a charge of absence without leave (AWOL)
consisting of 14 specifications covering 528 hours over a 3-month period. Initial
Appeal File (IAF), Tab 6 at 17. On appeal, she alleged, among other things, that,
in effecting her removal, the agency discriminated against her based on her
disability under the theory of denial of reasonable accommodation. IAF, Tab 12.
She also claimed that the agency retaliated against her for her protected activity,
including requesting reasonable accommodation. IAF, Tab 1.
In a decision based on the written record, the administrative judge found
that the agency had proven its charge. IAF, Tab 38, Initial Decision (ID)
at 23-28. In assessing the appellant’s disability discrimination claim, the
administrative judge found that the appellant met the definition of an individual
with a disability, but that ultimately she did not establish her claim. ID at 30-37.
The administrative judge further found that the appellant did not establish her
claim of retaliation for requesting reasonable accommodation. ID at 41-43. After2
finding that the agency established that there was a nexus between the sustained
charge and the efficiency of the service, ID at 45-46, and that removal was a
reasonable penalty, ID at 46-49, the AJ sustained the agency’s action, ID at 2, 49.
In Haas v. Department of Homeland Security , 2022 MSPB 36, ¶¶ 28-29,
the Board clarified that only an otherwise qualified individual with a disability is
entitled to relief under the Rehabilitation Act for a claim of status-based
discrimination or denial of reasonable accommodation. 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). Because the administrative judge in the
instant case did not have the benefit of the Board’s decision in Haas, we have
addressed that issue here. As set forth below, we find that, although the
administrative judge did not make a specific finding regarding whether the
appellant is a qualified individual with a disability, the administrative judge made
sufficient factual findings to lead to the conclusion that the appellant is, in fact,
not a qualified individual with a disability.
The administrative judge considered the types of accommodation the
appellant requested: transfer, telework, advanced sick leave, additional leave
without pay (LWOP), and donated leave. As to the three types of leave, the
administrative judge found that the approval or denial of requests for leave all
were within the agency’s discretion and that the agency had shown that its denials
were reasonable under the circumstances. ID at 25-28. Specifically, the
administrative judge found that the appellant never submitted a formal request for
advanced sick leave, or the information required to support such a request, ID
at 25; that, when she requested additional LWOP after the agency had already
granted her a significant amount, there was no foreseeable end in sight to her
absences, which had become a burden to the agency justifying the denial,
Bologna v. Department of Defense , 73 M.S.P.R. 110, 114, aff’d, 135 F.3d 774
(Fed. Cir. 1997) (Table), ID at 25-26; and that, as to donated leave, the3
appellant’s condition appeared to be chronic rather than an emergency situation,2
and that she failed to show how her participation in the agency program in 2017
would have alleviated her removal a year later, ID at 26-28. Regarding telework,
the administrative judge found that the appellant requested full-time telework, not
less than full-time, as she alleged, and that, in any event, the agency provided
credible reasons for its decision to deny her more than 1 day of telework per
week. ID at 31-35. And as for transfer, the administrative judge found that the
appellant failed, during her last 18 months of employment, to identify any vacant
funded position for which she was qualified and to which she could be
transferred. Jackson v. U.S. Postal Service , 79 M.S.P.R. 46, 54 (1998) (finding
that an appellant has the burden of proving that a position for which she is
qualified exists and was available) ; ID at 35-37. The administrative judge found
therefore that the appellant also failed to prove that the agency did not
accommodate her disability through the denial of telework and transfer. ID at 35,
37. Although the administrative judge did not explicitly find that the appellant is
not a qualified individual with a disability, the administrative judge’s findings are
sufficient to establish that the appellant is not a qualified individual with a
disability because she did not show that she can perform the duties of her position
with or without accommodation.
After the initial decision was issued, the Board addressed another issue
which bears on this case. In Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶¶ 44, 46, the Board clarified that both requesting a reasonable
accommodation and complaining of disability discrimination are activities
protected by the Rehabilitation Act, and that such claims are therefore properly
analyzed under 42 U.S.C. § 12203(a). Specifically, in such claims, the appellant
2 In fact, 5 C.F.R. § 630.902 makes no distinction between chronic and urgent
conditions, stating only that a medical emergency is a medical condition that is likely to
require an employee’s absence from duty. In any event, however, the administrative
judge properly found that the allowance of donated leave under an agency program is,
as with LWOP, at the agency’s discretion. Joyner v. Department of the Navy ,
57 M.S.P.R. 154, 160 (1993).4
must prove that retaliation was a but-for cause of the agency’s action. Pridgen,
2022 MSPB 31, ¶¶ 46-47. Again, because the administrative judge in this case
did not have the benefit of the Board’s decision in Pridgen, we have addressed
that decision here. As set forth below, we find that the administrative judge
applied a less stringent test to the appellant’s claim of retaliation for requesting
reasonable accommodation.
In addressing this allegation, the administrative judge found that, while the
agency did not grant the appellant’s request for more than 1 day per week of
telework, it did allow her that schedule, as it did other new employees, even
though it did not consider her position suitable for telework and had concerns
with her ability to learn the position and effectively perform its duties, and that it
thereby showed flexibility rather than retaliation for her protected activity. ID
at 41. The administrative judge further found that, to the extent the agency was
frustrated with the appellant’s decision to live approximately 120 miles from her
duty station, which caused her to request reassignment almost immediately after
beginning her employment, such frustration was reasonable and did not
demonstrate a retaliatory animus based on her protected activity. In addition, the
administrative judge found that, other than management officials’ knowledge of
the appellant’s protected activity, there was scant evidence that such activity was
a consideration in the agency’s decision to remove her. ID at 42. Concluding
that the agency had a sound basis for the AWOL charge, the administrative judge
found that the appellant did not prove that her request for reasonable
accommodation was a motivating factor in the agency’s decision to remove her.
ID at 42-43.
The administrative judge analyzed the appellant’s claim of retaliation for
requesting reasonable accommodation in accordance with, and based on, the Title
VII “motivating factor” standard. However, that standard is a lower standard than
the Rehabilitation Act’s but-for causation standard for retaliation claims.
Because we otherwise discern no error in the administrative judge’s reasoning,5
we affirm her finding, as modified, to find that the appellant did not prove that
her request for reasonable accommodation was a but-for cause of her removal.
NOTICE OF APPEAL RIGHTS3
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 on7
race, color, religion, sex, 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) or8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
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 | Ide_Carol_L_CH-0752-19-0362-I-1_Final_Order.pdf | 2024-08-05 | CAROL LYNN IDE v. DEPARTMENT OF DEFENSE, MSPB Docket No. CH-0752-19-0362-I-1, August 5, 2024 | CH-0752-19-0362-I-1 | NP |
781 | https://www.mspb.gov/decisions/nonprecedential/Ukandu_ValentineAT-0752-21-0261-B-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VALENTINE UKANDU,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
AT-0752-21-0261-B-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Matthew Fogg , Washington, D.C., for the appellant.
Jennie C. Patschull , Joint Base Andrews, Maryland, for the agency.
William W. Cunningham , Columbus, Mississippi, 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 his removal. On petition for review, the appellant argues that he
had ineffective assistance of counsel. Ukandu v. Department of the Air Force ,
MSPB Docket No. AT-0752-21-0261-B-1, Remand Petition for Review File,
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
Tab 1 at 4. He also argues that additional discovery may have aided his case. Id.
at 4-5. Next, the appellant challenges the agency’s charges of failure to maintain
a condition of employment and lack of candor, providing several explanations or
rationales concerning the certification he was missing and his representations
about the same. Id. at 4-10. Finally, the appellant asserts that his removal was
unreasonable and that it was the product of discrimination or reprisal. Id. at 4-9.
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. Except as expressly MODIFIED to
correct the penalty analysis, we AFFIRM the initial decision.
¶2Though not specifically raised by the parties, or recognized in the remand
initial decision, we uncovered an error on the part of the agency regarding its
penalty determination. If the Board sustains an agency’s charges, as occurred
here, 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. Chin v. Department of Defense ,
2022 MSPB 34, ¶ 24; Douglas v. Veterans Administration , 5 M.S.P.R. 280, 306
(1981). In Douglas, 5 M.S.P.R. at 305-06, the Board listed 12 nonexhaustive
factors that are relevant in assessing the penalty to be imposed for an act of2
misconduct, including: the nature and seriousness of the offense, and its relation
to the appellant’s duties, position, and responsibilities; the appellant’s job level
and type of employment; his past disciplinary record; and his past work record,
including his length of service and performance history. In determining whether
the selected penalty is reasonable, the Board gives due weight to the agency’s
discretion in exercising its managerial function of maintaining employee
discipline and efficiency. Chin, 2022 MSPB 34, ¶ 20. 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.
¶3In this case, the agency conducted its penalty analysis on a form that is
mostly unremarkable. However, the one exception is the following language
about an employee’s past performance: “Lengthy service, generally over 8 years,
can only be a mitigating, not an aggravating factor. But lengthy service may
mean employee should have known better.” Ukandu v. Department of the Air
Force, MSPB Docket No. AT-0752-21-0261-I-1, Initial Appeal File, Tab 1 at 22.
On that form, the agency described the appellant as having 21 years of Federal
service, including 12 with the agency. Id. It further described this as an
aggravating factor because the appellant “should know better than to provide
invalid certifications.” Id. The Board has specifically rejected this approach,
noting that such a scheme yields the illogical result that the longer an individual
works for an agency, the more likely that a single misstep would be fatal to his
career. Shelly v. Department of the Treasury , 75 M.S.P.R. 677, 684 (1997).
Nonetheless, we independently find the penalty of removal to be reasonable. As
the administrative judge correctly recognized, the Board has routinely sustained
removals in similar situations involving an employee’s failure to maintain a
condition of employment. E.g., Dieter v. Department of Veterans Affairs ,3
2022 MSPB 32, ¶ 6 n.2 (affirming the penalty of removal for an employee’s
failure to maintain a condition of employment—his ecclesiastical endorsement);
Penland v. Department of the Interior , 115 M.S.P.R. 474, ¶ 11 (2010)
(overturning an administrative judge’s decision to mitigate the penalty from
removal to demotion when the action was based on an employee’s loss of pilot
authorization, even though the appellant had 25 years of service with otherwise
good performance). Here, the appellant failed to maintain a condition of
employment and he also exhibited a lack of candor about the same. Mitigating
factors, such as the appellant’s length of service and good performance, do not
warrant a lesser penalty.
NOTICE OF APPEAL RIGHTS2
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
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain5
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013 6
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.3 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
3 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Ukandu_ValentineAT-0752-21-0261-B-1_Final_Order.pdf | 2024-08-05 | VALENTINE UKANDU v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. AT-0752-21-0261-B-1, August 5, 2024 | AT-0752-21-0261-B-1 | NP |
782 | https://www.mspb.gov/decisions/nonprecedential/Rodriguez_Julian_P_PH-0752-22-0326-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIAN RODRIGUEZ,
Appellant,
v.
DEPARTMENT OF THE AIR FORCE,
Agency.DOCKET NUMBER
PH-0752-22-0326-I-2
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Julian Rodriguez , Wrightstown, New Jersey, pro se.
Christopher Hawthorne , Esquire, and Brian J. Stabley , Esquire, 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
dismissed his appeal as settled. On petition for review, the appellant argues,
among other things, that the settlement agreement is discriminatory and biased,
that he did not knowingly waive his rights, and that the agency manipulated him
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
into an unfair agreement .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).
2 The appellant filed a motion for leave to file a motion for priority processing of a
whistleblower case, addressing the merits of his underlying appeal, and asserting that he
had obtained evidence after the issuance of the initial decision that was not previously
produced by the agency and not discoverable by him. Petition for Review File, Tab 9
at 4-6. The merits of the underlying appeal are not relevant to the dispositive issues in
this case, i.e., whether the settlement agreement is valid. See Scott v. Department of
Veterans Affairs, 89 M.S.P.R. 650, ¶ 9 n.* (2001) (explaining that once a case settles,
arguments regarding the underlying merits were no longer relevant). Accordingly, we
deny the appellant’s motion. See e.g., Hooker v. Department of Veterans Affairs ,
120 M.S.P.R. 629, ¶ 4, n.4 (2014) (denying the appellant’s motions to file additional
evidence because he did not show that the alleged new evidence was material to the
dispositive issues in the case).
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
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 3
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the4
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of5
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Rodriguez_Julian_P_PH-0752-22-0326-I-2_Final_Order.pdf | 2024-08-05 | JULIAN RODRIGUEZ v. DEPARTMENT OF THE AIR FORCE, MSPB Docket No. PH-0752-22-0326-I-2, August 5, 2024 | PH-0752-22-0326-I-2 | NP |
783 | https://www.mspb.gov/decisions/nonprecedential/Rivera_Felix_M_DA-3443-23-0190-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FELIX M. RIVERA,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-3443-23-0190-I-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Felix M. Rivera , Garden Ridge, Texas, pro se.
Anna Eleanor Virdell , Esquire, JBSA Fort Sam 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
¶1The appellant has filed a petition for review of the initial decision, which
dismissed for lack of jurisdiction his appeal disputing the assignment of certain
additional duties. 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).
¶2On petition for review, the appellant disputes the agency’s claim that he did
not file a grievance under a collective bargaining agreement concerning the
relevant issue in this appeal by indicating he submitted a grievance intake form to
his union on November 30, 2022. Petition for Review File, Tab 1 at 3. He also
argues that the agency’s assignment of the Alternate Safety Officer duties
violated merit systems principles. Id.
¶3Whether the appellant filed a grievance against the agency is of no matter
here because he has not put forth an allegation of prohibited discrimination raised
in connection with a matter otherwise appealable to the Board pursuant to
5 U.S.C. § 7702. See 5 U.S.C. § 7121(d); Ogden Air Logistics Center and
American Federation of Government Employees, Local 1592 , 6 M.S.P.R. 630, 635
(1981). Moreover, in the absence of an otherwise appealable action, the Board
lacks jurisdiction to determine whether an agency has violated merit systems
principles. Davis v. Department of Defense , 105 M.S.P.R. 604, ¶ 15 (2007).
Accordingly, we deny the petition for review.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 | Rivera_Felix_M_DA-3443-23-0190-I-1_Final_Order.pdf | 2024-08-05 | FELIX M. RIVERA v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-3443-23-0190-I-1, August 5, 2024 | DA-3443-23-0190-I-1 | NP |
784 | https://www.mspb.gov/decisions/nonprecedential/Ramirez_Ruben_G_DA-0752-21-0119-I-4_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RUBEN G. RAMIREZ,
Appellant,
v.
DEPARTMENT OF THE ARMY,
Agency.DOCKET NUMBER
DA-0752-21-0119-I-4
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Elchonon Reizes , Esquire, Houston, Texas, for the appellant.
Kenneth Muir , Corpus Christi, Texas, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision, which reversed the appellant’s removal
and denied his affirmative defense of whistleblower reprisal. Generally, we grant
petitions such as these only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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 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
neither party has established any basis under section 1201.115 for granting the
petition or cross petition for review. Therefore, we DENY the petition for review
and the cross petition for review. Except as expressly MODIFIED to clarify the
proper interpretation of the agency’s charge and the proper collateral estoppel
analysis, we AFFIRM the initial decision.
¶2The administrative judge found the agency’s conduct unbecoming charge
ambiguous, and she conducted alternative analyses under multiple interpretations.
Ramirez v. Department of the Army , MSPB Docket No. DA-0752-21-0119-I-4,
Appeal File, Tab 44, Initial Decision (ID) at 5-25. We find that the proper
interpretation is the one discussed in the latter portions of the initial decision,
requiring proof that the appellant engaged in the underlying conduct, not just
proof that a Texas court issued an order regarding that conduct. ID at 8-25.
Regarding that interpretation of the charge, the agency argues on review that the
Board should give collateral estoppel effect to the Texas court order. Ramirez v.
Department of the Army , MSPB Docket No. DA-0752-21-0119-I-4, Petition for
Review (PFR) File, Tab 1 at 8-14. We disagree. In determining whether to apply
collateral estoppel, we apply the law applicable to the tribunal that issued the
original decision. See, e.g., Mosby v. Department of Housing and Urban
Development, 114 M.S.P.R. 674, ¶¶ 5-6 (2010). Thus, here, we look to Texas law
to determine whether collateral estoppel applies. We find that those standards
are not met in this case because the Texas court rendered its order in2
summary fashion. Ramirez v. Department of the Army , MSPB Docket No. DA-
0752-21-0119-I-2, Appeal File, Tab 3 at 48-53. The Texas court did not provide
the kind of “reasoned opinion” contemplated under Texas collateral estoppel
standards. See BP Auto. LP v. RML Waxahachie Dodge, LLC , 517 S.W.3d 186,
200 (Tex. App. 2017) (quoting, e.g., Mower v. Boyer , 811 S.W.2d 560, 562 (Tex.
1991)). We have considered the agency’s other arguments on review but find that
none warrants a different result. PFR File, Tab 1 at 8-28. We reach the same
conclusion for the arguments the appellant presents in his cross petition for
review. PFR File, Tab 3 at 19.
ORDER
¶3We ORDER the agency to cancel the appellant’s removal and to restore the
appellant effective December 4, 2020. See Kerr v. National Endowment for the
Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
later than 20 days after the date of this decision.
¶4We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶5We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b). 3
¶6No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶7For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.4
NOTICE OF APPEAL RIGHTS2
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:
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
DEFENSE FINANCE AND ACCOUNTING
SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx .
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid
by vendor pay, not DFAS Civilian Pay.
☐1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the
ticket comments as to why the documentation is not applicable:
☐2) Settlement agreement, administrative determination, arbitrator award, or order.
☐3) Signed and completed “Employee Statement Relative to Back Pay”.
☐4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***
☐6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
☐7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
10
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts .
1.Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2.The following information must be included on AD-343 for Restoration:
a.Employee name and social security number.
b.Detailed explanation of request.
c.Valid agency accounting.
d.Authorized signature (Table 63).
e.If interest is to be included.
f.Check mailing address.
g.Indicate if case is prior to conversion. Computations must be attached.
h.Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1.Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2.Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3.Outside earnings documentation statement from agency.
4.If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5.Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6.If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7.If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1 -7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a.Must provide same data as in 2, a-g above.
b.Prior to conversion computation must be provided.
c.Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
11 | Ramirez_Ruben_G_DA-0752-21-0119-I-4_Final_Order.pdf | 2024-08-05 | RUBEN G. RAMIREZ v. DEPARTMENT OF THE ARMY, MSPB Docket No. DA-0752-21-0119-I-4, August 5, 2024 | DA-0752-21-0119-I-4 | NP |
785 | https://www.mspb.gov/decisions/nonprecedential/Bell_AndrewAT-0353-14-0525-C-3_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW BELL,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBER
AT-0353-14-0525-C-3
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Bell , Atlanta, Georgia, pro se.
Daniel P. Kohlmeyer , Esquire, Jamaica, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the compliance initial
decision, denying his third petition for enforcement. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The administrative judge issued a compliance initial decision on
September 4, 2019, finding the agency in compliance with the parties’ August 21,
2014 settlement agreement. Compliance File (CF), Tab 6, Compliance Initial
Decision (CID). The compliance initial decision advised the appellant that the
deadline to file a petition for review was October 9, 2019, and provided
information as to how to file a petition for review. CID at 5-9. The compliance
initial decision was sent to the appellant’s address of record, via U.S. Mail, on
September 4, 2019. CF, Tab 7.
On November 19, 2019, the appellant hand-delivered a petition for review
to the regional office, arguing, among other things, that the agency had not
corrected his service computation date, and asserting that the agency engaged in
bad acts, both before and after the signing of the settlement agreement, including
interfering with his claim for Office of Workers’ Compensation Programs
benefits. Compliance Petition for Review (CPFR) File, Tab 1 at 1-3. That filing
was forwarded to Board headquarters. CPFR File, Tab 2. The Acting Clerk of
the Board issued a letter to the appellant asking him to clarify the purpose of his
filing, id., and the appellant stated that his filing should be considered a petition
for review of the compliance initial decision in MSPB Docket No. AT-0353-14-
0525-C-3, as well as the initial decision issued in the joined appeals of MSPB
Docket Nos. AT-0343-14-0525-B-1, AT-0353-14-0524-B-1, and AT-3443-14-
0184-B-2.2 CPFR File, Tab 4 at 4.
The Acting Clerk of the Board then issued the appellant an
acknowledgment letter, advising him that his petition for review of the
compliance initial decision was filed after the October 9, 2019 deadline, and that
he should file a motion with the Board to accept the filing as timely, or to waive
the time limit for good cause. CPFR File, Tab 5 at 2. The appellant filed a
2 The Board has issued a separate decision addressing the appellant’s petition for review
in MSPB Docket Nos. AT-0343-14-0525-B-1, AT-0353-14-0524-B-1, and AT -3443-14-
0184-B-2.2
motion to accept his petition for review as timely filed, or to waive the time limit
for good cause, explaining that he was out of town and unaware of the compliance
initial decision until “on or after September 25, 2019.” CPFR File, Tab 7 at 5.
He also stated that he had reaggravated a wrist injury and that he filed the petition
for review once his wrist healed and he could retrieve documents from his post
office box.3 Id. The agency responded in opposition to the appellant’s petition
for review. CPFR File, Tab 8.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). It is the appellant’s burden of proof, by a preponderance of the
evidence, to establish the timeliness of his petition for review. 5 C.F.R.
§ 1201.56(b)(2)(B); McPherson v. Department of the Treasury , 104 M.S.P.R.
547, ¶ 4 (2007) (stating that the appellant bears the burden of proof with regards
to timeliness, which he must establish by preponderant evidence).
A petition for review of the compliance initial decision was due no later
than October 9, 2019. CID at 5. The appellant did not file his petition for review
until November 19, 2019, i.e., approximately 6 weeks later. CPFR File, Tab 1.
The certificate of service confirms that the compliance initial decision was sent to
the appellant’s post office box, via U.S. Mail. CF, Tab 7. The appellant has not
claimed that the address was incorrect, or that he did not receive the compliance
initial decision. In fact, the appellant confirms that he received the initial
3 The appellant filed a second motion regarding the existence of good cause for his
untimely filing on January 15, 2020, which repeated some of the arguments raised in his
earlier filing. CPFR File, Tab 9 at 4-5. Although filed after the deadline set in the
Acting Clerk’s acknowledgment order, we have considered the appellant’s pleading. 3
decision as of September 25, 2019. CPFR File, Tab 7 at 5. Therefore, the
appellant has not established that his appeal was timely filed.4
As the appellant filed his petition for review late, the issue is whether he
established good cause to waive the time limit. The Board will waive a petition
for review time limit only upon a showing of good cause for the delay in filing.
5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing of a
petition, a party must show that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Rivera v. Social Security
Administration, 111 M.S.P.R. 581, ¶ 4 (2009) (citing Alonzo v. Department of the
Air Force, 4 M.S.P.R. 180, 184 (1980)). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his petition. Rivera, 111 M.S.P.R. 581,
¶ 4 (citing Moorman v. Department of the Army , 68 M.S.P.R. 60, 62 -63 (1995),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table)).
The appellant has not established good cause for his delay in filing.
Although we recognize that the appellant is acting in a pro se capacity, a near
6-week filing delay is significant. See, e.g., Dow v. Department of Homeland
Security, 109 M.S.P.R. 633, ¶ 8 (2008) (finding that a filing delay of more than
1 month was significant, despite an appellant’s pro se status); Crook v. U.S.
4 The Board’s decisions and regulations address various circumstances in which an
individual failed to promptly retrieve a decision from a post office box or other location
and then filed with the Board in an untimely fashion. See, e.g., Little v. U.S. Postal
Service, 124 M.S.P.R. 183, ¶¶ 8-9 (2017); Marcantel v. Department of Energy ,
121 M.S.P.R. 330, ¶¶ 7-9 (2014); 5 C.F.R. § 1201.22(b)(3) & Examples 1. Regardless,
even if we were to assume that the appellant did not receive the initial decision until
September 25, 2019, per 5 C.F.R. § 1201.114(e), the appellant had until October 30,
2019, i.e., 30 days from the date of receipt, to file a petition for review. Thus, the
appellant’s petition for review would still be 20 days late. 4
Postal Service, 108 M.S.P.R. 553, ¶ 6 (finding that a 1-month filing delay was
significant), aff’d, 301 F. App’x 982 (Fed. Cir. 2008) . The appellant has not
offered a persuasive excuse, showed that he acted with diligence, or set forth
circumstances beyond his control that affected his ability to comply with the
filing deadline. In fact, the appellant admits he knew of the compliance initial
decision as of September 25, 2019, i.e., 2 weeks prior to the filing deadline, but
made no effort to file a timely petition for review, or request an extension of the
filing deadline. CPFR File, Tab 7 at 5. Furthermore, although the appellant
attached a medical note confirming that he injured his wrist, the note does not
establish that the appellant was hospitalized or was otherwise medically
incapacitated, such that he was unable to file a timely petition for review or
request an extension.5 Id. at 5, 19. Instead, we find that the appellant’s actions
demonstrate a lack of ordinary prudence or due diligence. Therefore, we find no
basis to waive the time limit for the appellant’s petition for review.
Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The compliance initial decision remains the final
decision of the Board regarding the appellant’s petition for enforcement.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
5 The Acting Clerk of the Board notified the appellant of the elements necessary to
establish that an untimely filing was the result of an illness or injury. PFR File, Tab 5
at 7, n.1.
6 The Office of the Clerk of the Board has advised that a few of the pleadings submitted
by the parties into the administrative record of the appellant’s initial appeals during
2013 and 2014 could not be located. This administrative record issue has no impact on
the disposition of this matter, and thus, it has not prejudiced the appellant.
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
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although 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.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 of8
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.10 | Bell_AndrewAT-0353-14-0525-C-3_Final_Order.pdf | 2024-08-05 | ANDREW BELL v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0353-14-0525-C-3, August 5, 2024 | AT-0353-14-0525-C-3 | NP |
786 | https://www.mspb.gov/decisions/nonprecedential/Bell_AndrewAT-0353-14-0525-B-1_and_AT-0752-14-0524-B-1_and_AT-3443-14-0184-B-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW BELL,
Appellant,
v.
DEPARTMENT OF
TRANSPORTATION,
Agency.DOCKET NUMBERS
AT-0353-14-0525-B-1
AT-0752-14-0524-B-1
AT-3443-14-0184-B-2
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Bell , Atlanta, Georgia, pro se.
Ryan M. Landers , Esquire, College Park, 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
dismissed the appellant’s joined appeals as settled. For the reasons set forth
below, the appellant’s petition for review is DISMISSED as untimely filed
without good cause shown. 5 C.F.R. § 1201.114(e), (g).
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
BACKGROUND
The administrative judge issued an initial decision on April 29, 2015,
dismissing the appellant’s joined appeals as settled, pursuant to the parties’
August 21, 2014 settlement agreement. Bell v. Department of Transportation ,
MSPB Docket No. AT-0353-14-0525-B-1, Remand File (RF), Tab 5, Initial
Decision (ID).2 The initial decision explicitly stated that the deadline to file a
petition for review was June 3, 2015, and provided information as to how to file a
petition for review. ID at 2-5. The initial decision was sent to the appellant’s
former representative, as well as the appellant’s post office box, via U.S. Mail, on
April 29, 2015. RF, Tab 6.
On November 19, 2019, the appellant hand-delivered a petition for review
to the regional office, arguing, among other things, that the agency had not
corrected his service computation date, and asserting that the agency engaged in
bad acts, both before and after the signing of the settlement agreement, including
interfering with his claim for Office of Workers’ Compensation Programs
benefits. Petition for Review (PFR) File, Tab 1 at 1-3. That filing was forwarded
to Board headquarters. PFR File, Tab 2. The Acting Clerk of the Board issued a
letter to the appellant asking him to clarify the purpose of his filing, id., and the
appellant stated that his filing should be considered a petition for review of the
compliance initial decision in MSPB Docket No. AT-0353-14-0525-C-3, as well
as the initial decision issued in the joined appeals of MSPB Docket Nos. AT-
0343-14-0525-B-1, AT-0353-14-0524-B-1, and AT-3443-14-0184-B-2.3 PFR
File, Tab 3 at 4.
The Acting Clerk of the Board then issued the appellant an
acknowledgment letter, advising him that his petition for review of the initial
decision was filed after the June 3, 2015 deadline, and that he should file a
2 Because MSPB Docket No. AT-0353-14-0525-B-1 is designated as the lead case, we
cite to this case.
3 The Board will issue a separate decision addressing the appellant’s petition for review
in MSPB Docket No. AT-0353-14-0525-C-3.2
motion with the Board to accept the filing as timely, or to waive the time limit for
good cause shown. PFR File, Tab 4 at 2. The appellant did not file a motion with
the Board addressing the approximately 4½-year filing delay,4 and the agency did
not respond to the appellant’s petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the appellant shows that the initial
decision was received more than 5 days after the initial decision was issued,
within 30 days after the date the appellant received the initial decision. 5 C.F.R.
§ 1201.114(e). It is the appellant’s burden of proof, by a preponderance of the
evidence, to establish the timeliness of his petition for review. 5 C.F.R.
§ 1201.56(b)(2)(B); McPherson v. Department of the Treasury , 104 M.S.P.R.
547, ¶ 4 (2007) (stating that the appellant bears the burden of proof with regards
to timeliness, which he must establish by preponderant evidence).
A petition for review of the initial decision in this matter was due no later
than June 3, 2015. ID at 2. The appellant did not file his petition for review until
November 19, 2019, i.e., approximately 4½ years later. PFR File, Tab 1. The
certificate of service confirms that the initial decision was sent to both the
appellant and his former representative, via U.S. Mail. RF, Tab 6. The appellant
has not claimed that the address was incorrect, or that he did not receive the
initial decision. Therefore, the appellant has not established that his appeal was
timely filed.
As the appellant filed his petition for review late, the issue is whether he
established good cause to waive the time limit. The Board will waive a petition
for review time limit only upon a showing of good cause for the delay in filing.
4 The appellant filed a motion with the Board to accept his petition for review in MSPB
Docket No. AT-0353-14-0525-C-3 as timely filed or to waive the time limit. Bell v.
Department of Transportation , MSPB Docket No. AT-0353-14-0525-C-3, Compliance
Petition for Review File, Tab 7. This motion does not address the nearly 4½-year filing
delay present in this case. Id.3
5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing of a
petition, a party must show that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Rivera v. Social Security
Administration, 111 M.S.P.R. 581, ¶ 4 (2009) (citing Alonzo v. Department of the
Air Force, 4 M.S.P.R. 180, 184 (1980)). To determine whether an appellant has
shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and his showing of due diligence, whether he is
proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune which similarly shows a causal
relationship to his inability to timely file his petition. Rivera, 111 M.S.P.R. 581,
¶ 4 (citing Moorman v. Department of the Army , 68 M.S.P.R. 60, 62 -63 (1995),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table)).
The appellant has not established good cause for his delay in filing. PFR
File, Tab 1. While we recognize that the appellant is pro se, he filed his petition
for review approximately 4½ years late, which is a considerable filing delay. See
Owuor v. Department of Justice , 99 M.S.P.R. 192, ¶ 9 (2005) (explaining that a
4-year filing delay is significant, even in light of the appellant’s pro se status);
Bergamy v. U.S. Soldiers’ and Airmen’s Home , 90 M.S.P.R. 1, ¶ 4 (2001) (stating
that a filing delay of almost 4 years is significant) . Further, on review, the
appellant did not file any motion addressing the 4½-year filing delay, despite the
Office of the Clerk advising him that he needed to establish either that his
petition for review was timely filed, or demonstrate good cause for the delay.
PFR File, Tab 4 at 2. Such silence does not constitute a showing of good cause.
Gonzalez-Piloto v. Administrative Office of the U.S. Courts , 100 M.S.P.R. 363,
¶ 5 (2005); Ollado v. Office of Personnel Management , 98 M.S.P.R. 618, ¶ 5,
aff’d, 157 F. App’x. 301 (Fed. Cir. 2005) ; see Moyer v. Department of
Agriculture, 96 M.S.P.R. 22, ¶ 6 (2004) (finding that the appellant did not
establish good cause for his untimely petition for review when he did not provide4
any explanation regarding the 14-month filing delay). Thus, we find no basis to
waive the time limit for the appellant’s 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 remains the final decision of the
Board.5
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.
5 The Office of the Clerk of the Board has advised that a few of the pleadings submitted
by the parties into the administrative record of the appellant’s initial appeals during
2013 and 2014 could not be located. This administrative record issue has no impact on
the disposition of this matter, and thus, it has not prejudiced the appellant.
6 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.5
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.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. 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 | Bell_AndrewAT-0353-14-0525-B-1_and_AT-0752-14-0524-B-1_and_AT-3443-14-0184-B-2_Final_Order.pdf | 2024-08-05 | ANDREW BELL v. DEPARTMENT OF TRANSPORTATION, MSPB Docket No. AT-0353-14-0525-C-3, August 5, 2024 | AT-0353-14-0525-C-3 | NP |
787 | https://www.mspb.gov/decisions/nonprecedential/Williams_Samuel_J_AT-0752-22-0573-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL JASON WILLIAMS IV,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-0752-22-0573-I-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Samuel Jason Williams IV , Miami, Florida, pro se.
Andrew James Patch , Esquire, Tampa, 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
affirmed his removal. On petition for review, the appellant argues that the
administrative judge erred in finding that the agency proved certain specifications
of its conduct unbecoming a Federal employee charge; disputes the administrative
judge’s conclusion that the appellant failed to prove his claim of race
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
discrimination; argues that the videoconference hearing was insufficient and
disagrees with how the administrative judge conducted the hearing; takes issue
with the administrative judge’s denial of his motion to compel and the agency’s
responses to his written discovery; and submits documents that are not contained
in the record below. He makes new arguments based on these documents.
Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2The appellant offers allegedly new evidence on review in the form of a copy
of the Hillsborough County Sheriff’s Office law enforcement officer (LEO) log
for the date of October 5, 2021, which he indicates he obtained from the Sheriff’s
Office in response to a Freedom of Information Act (FOIA) request. Petition for
Review (PFR) File, Tab 2 at 10-11, Tab 4 at 11-12. He observes that the
administrative judge denied his motion to compel the agency to produce a copy of
the log. PFR File, Tab 2 at 9, Tab 3 at 6-7, 10. Based on the LEO log, the
appellant argues that the agency’s investigation into his misconduct was flawed
because it did not include this document. PFR File, Tab 2 at 7-9, 12-13, Tab 3
at 5-7, 11-12, Tab 4 at 11-12. 2
¶3The Board generally will not consider an argument raised for the first time
in a petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence. Clay v.
Department of the Army , 123 M.S.P.R. 245, ¶ 6 (2016). Because the appellant
has not indicated when he requested the log, he has not demonstrated that he
acted with due diligence. PFR File, Tab 2 at 10; see Pena v. Department of
Housing & Urban Development , 48 M.S.P.R. 614, 615-16 (1991) (finding that an
appellant failed to demonstrate due diligence in obtaining evidence when he did
not state when he obtained it); cf. Mills v. U.S. Postal Service , 119 M.S.P.R. 482,
¶ 5 (2013) (explaining that the Board will not consider evidence that an appellant
presents for the first time on review if she had an opportunity to obtain the
evidence via discovery but did not do so). Therefore, we decline to consider the
LEO log or the new arguments the appellant bases on the log. PFR File, Tab 2
at 10.
¶4Nor do we discern any abuse of discretion by the administrative judge in
denying the appellant’s motion to compel the agency to provide a copy of the log.
PFR File, Tab 2 at 7-9, 13-14, Tab 3 at 5, 12. Any motion for an order to compel
must be filed with the administrative judge within 10 days of the date of service
of the opposing party’s response or, if there is no response, within 10 days after
the response time has expired. Pridgen v. Office of Management and Budget ,
2022 MSPB 31, ¶ 71; 5 C.F.R. § 1201.73(d)(3). The party filing the motion must
include, among other documents, a copy of the original discovery request and the
response received, or a statement that no response was received. 5 C.F.R.
§ 1201.73(c)(1)(i)-(ii). An administrative judge has broad discretion in ruling on
discovery matters, and absent an abuse of discretion, the Board will not find
reversible error in such rulings. Pridgen, 2022 MSPB 31, ¶ 71. It is within the
administrative judge’s discretion to deny a motion to compel that does not meet
the timeliness and procedural requirements listed here. 5 C.F.R. § 1201.74
(stating that an administrative judge may deny a motion to compel discovery if a3
party fails to comply with the requirements of 5 C.F.R. § 1201.73(c)(1) and (d)
(3)).
¶5The administrative judge denied the appellant’s motion to compel because
he did not file his motion within 10 days of the agency’s September 23, 2022
response to his discovery request and did not provide a copy of his discovery
request or the agency’s response. Initial Appeal File (IAF), Tab 23 at 4-5, Tab 25
at 4-5, Tab 26. Even if the motion were properly filed, the administrative judge
observed that the appellant’s discovery request, a copy of which the agency
provided in its response to the appellant’s motion to compel, did not include a
request for the LEO log. IAF, Tab 24 at 10-22, Tab 26 at 2; see Johnson v.
Department of Justice , 104 M.S.P.R. 624, ¶ 30 (2007) (concluding that an
administrative judge’s failure to rule on an appellant’s motion to compel was
harmless error because the motion did not comply with the Board’s regulatory
requirements). We discern no abuse of discretion. To the extent that the
appellant generally argues that the agency’s responses to his discovery request
were “false and misleading,” we are not persuaded. PFR File, Tab 3 at 6-7.
¶6The appellant argues that the agency was required to affirmatively produce
a copy of the LEO log and that the agency’s investigation into his misconduct
was deficient because it did not include a copy of the log. PFR File, Tab 2
at 12-14, Tab 3 at 5, 12. The appellant raises these arguments for the first time
on review based on the copy of the LEO log that he obtained through his FOIA
request. Because the appellant has not shown that he exercised due diligence in
obtaining the log, we decline to consider this new argument. See Clay,
123 M.S.P.R. 245, ¶ 6. More fundamentally, the appellant has not provided any
evidence that the agency was in possession of the LEO log. In fact, the official
who proposed the appellant’s removal denied ever seeing the log. Hearing
Transcript, Day 1 at 207 (testimony of the proposing official). Although
an agency investigator submitted a request to the Sheriff’s Office for “all reports
and body worn camera footage” of the incident, he did not request the LEO log.4
IAF, Tab 6 at 44. Further, a copy of the log was not contained in the agency’s
report of investigation into the incident. Id. at 18, 24-25. Therefore, the
appellant has not presented any evidence suggesting that the agency suppressed
the log.2
¶7Regarding his race discrimination claim, the appellant makes a new
argument on review that his first-level supervisor lied on an affidavit that he
submitted in connection with an equal employment opportunity (EEO) complaint
that the appellant filed. PFR File, Tab 4 at 6-9. According to the appellant, the
individual who proposed his removal did not take any action against the
appellant’s first-level supervisor.3 Id. at 8-9. The appellant argues that the
proposing official treated his first-level supervisor more leniently because he,
unlike the appellant, is Caucasian. Id. at 8-9. We interpret this argument as a
claim of disparate treatment.
¶8One way an appellant may establish a discrimination claim is through
comparator evidence, or evidence relating to the more favorable treatment of
similarly situated employees. Pridgen, 2022 MSPB 31, ¶¶ 24, 27. To be
2 The appellant argues that the agency provided deficient responses to his discovery
request for email correspondence referencing his name that was sent or received by six
identified individuals. PFR File, Tab 3 at 6-7; IAF, Tab 24 at 11, 46. The agency
indicated in its response that it would provide the requested emails for two of the
individuals identified by the appellant. An appellant is precluded from raising on
review an agency’s failure to respond to his discovery request when he did not file a
motion to compel with the administrative judge. Szejner v. Office of Personnel
Management, 99 M.S.P.R. 275, ¶ 5 (2005 ), aff’d, 167 F. App’x 217 (Fed. Cir. 2006). In
his motion to compel, the appellant generally requested that the administrative judge
order the agency to produce responses to his interrogatories and request for production.
IAF, Tab 23 at 5. The administrative judge acknowledged this broad language but
concluded that the appellant had failed to “reference any particular interrogatories or
requests for production of documents.” IAF, Tab 26 at 1 n.1. Therefore, the
administrative judge did not consider this request further. Id. The appellant never
clarified the request below, and we do not interpret it as concerning his request for the
emails he references on review. Accordingly, the appellant is precluded from raising
the agency’s allegedly deficient response on review.
3 Neither party requested the appellant’s first-level supervisor as a witness at the
hearing, and he did not testify. IAF, Tab 28 at 9-11, Tab 35 at 19-23, Tab 44 at 7-8.5
similarly situated, comparators must have reported to the same supervisor, been
subjected to the same standards governing discipline, and engaged in conduct
similar to the appellant’s without differentiating or mitigating circumstances.
Id., ¶ 27. The appellant claims that he first learned about the dissimilar treatment
between himself and his first-level supervisor when he deposed the proposing
official in connection with his EEO case after the record closed in the instant
appeal. PFR File, Tab 4 at 7-8.
¶9The Board will not grant a petition for review based on new evidence absent
a showing that it is of sufficient weight to warrant an outcome different from that
of the initial decision. Russo v. Veterans Administration , 3 M.S.P.R. 345, 349
(1980). Here, the appellant has presented no evidence that he and his first-level
supervisor were similarly situated. The appellant does not address whether they
shared the same duties, and it is patent that they had different supervisors. Most
importantly, the alleged behavior of the appellant’s first-level supervisor is not
similar to that of the appellant. The appellant’s first-level supervisor stated on
his EEO affidavit that he “d[id] not recall” asking the appellant about a medical
condition. PFR File, Tab 4 at 13. He later stated in his EEO deposition that the
appellant had “jogged [his] memory” but when he filled out his EEO affidavit he
“didn’t recall saying anything about it.” Id. at 14. The supervisor offered to
amend his affidavit. Id.
¶10The appellant’s misconduct was not similar to his supervisor’s mistaken
recollection, and unlike his supervisor the appellant never admitted to his
wrongdoing. See Hylick v. Department of the Air Force , 85 M.S.P.R. 145, ¶ 15
(2000) (agreeing with an administrative judge that an appellant and his alleged
comparator were not similarly situated because the comparator recanted his
misrepresentations before the agency questioned him while the appellant
continued to lie); Sanda N. v. Department of the Air Force , EEOC Appeal
No. 2023003129, 2024 WL 577333, at *8 (Feb. 1, 2024) (concluding that
higher-level employees were not similarly situated to a complainant); see also6
Pridgen, 2022 MSPB 31, ¶ 40 (stating that the Board generally defers to the
Equal Employment Opportunity Commission (EEOC) on issues of substantive
discrimination law unless the EEOC’s decision rests on civil service law for its
support or is so unreasonable that it amounts to a violation of civil service law).
The appellant was removed for affirmatively misrepresenting that a personal
courthouse visit was related to agency business, using his LEO position to carry a
concealed weapon into the courthouse, and falsely identifying himself as “Sam
O’Day.” IAF, Tab 6 at 7-8. Other than admitting to carrying a concealed
weapon, the appellant continued to deny he engaged in the alleged misconduct
when responding to his proposed removal. IAF, Tab 4 at 32-33, 44-46, 50-51.
Therefore, we decline to grant review based on this allegedly new evidence and
affirm the initial decision.
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
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
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 obtain8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 9
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Williams_Samuel_J_AT-0752-22-0573-I-1_Final_Order.pdf | 2024-08-05 | SAMUEL JASON WILLIAMS IV v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-0752-22-0573-I-1, August 5, 2024 | AT-0752-22-0573-I-1 | NP |
788 | https://www.mspb.gov/decisions/nonprecedential/Ingram_Judith_A_AT-1221-20-0544-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JUDITH INGRAM,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
AT-1221-20-0544-W-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
W. Robert Boulware , Esquire, Montgomery, Alabama, for the agency.
Glynneisha Bellamy , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and
did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
denied the appellant’s request for corrective action in her individual right 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).
action 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).
On petition for review, the appellant reasserts the same arguments and
evidence that she submitted before the administrative judge, including that she
made a protected disclosure pursuant to 5 U.S.C. § 2302(b)(8), that the protected
disclosure was a contributing factor to the alleged personnel actions, and that the
agency failed to show by clear and convincing evidence that it would have taken
the same action absent her whistleblowing. Petition for Review (PFR) File,
Tab 1. We find that the administrative judge adequately addressed the appellant’s
arguments in the initial decision, and we find no reason to disturb it.2
The appellant also argues on review that the administrative judge’s findings
on jurisdiction “negatively affected [her] ability to prove her appeal because she
thought that whether the protected disclosure was valid had already been
2 Because the appellant failed to establish that she made a protected disclosure that was
a contributing factor in a personnel action, the Board does not reach the issue of
whether the agency demonstrated by clear and convincing evidence that it would have
taken the same personnel actions in the absence of her disclosure. See 5 U.S.C.
§ 1221(e)(2).2
decided.” Id. at 20. We find that the administrative judge correctly informed the
appellant of her burden of proof on the merits of her claims. Initial Appeal File,
Tab 3 at 6, Tab 15 at 1-3. The appellant also asserts on review that she was
improperly advised by an Office of Special Counsel investigator to change her
complaint from one alleging a violation of prohibited personnel practice to one of
whistleblower reprisal. PFR File, Tab 1 at 20-21. To the extent the appellant is
alleging that her appeal is a prohibited personnel practice claim and not a
whistleblower reprisal claim, the Board lacks jurisdiction over such claims. See,
e.g., Brodt v. Merit Systems Protection Board , 11 F.3d 1060, 1061 (Fed. Cir.
1993) (“Prohibited personnel practices are cognizable by the Board only when
they motivate an otherwise appealable personnel action” and “[t]hey do not, in
themselves, provide a basis for review by the Board.”). Based on the foregoing,
we deny the appellant’s petition for review and affirm the initial decision denying
corrective action.
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.
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you4
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, 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 | Ingram_Judith_A_AT-1221-20-0544-W-1_Final_Order.pdf | 2024-08-05 | JUDITH INGRAM v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. AT-1221-20-0544-W-1, August 5, 2024 | AT-1221-20-0544-W-1 | NP |
789 | https://www.mspb.gov/decisions/nonprecedential/Bell_AndrewAT-0845-22-0496-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW BELL,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
AT-0845-22-0496-I-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Bell , Atlanta, Georgia, pro se.
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) finding that the appellant received an overpayment of his disability
retirement benefits under the Federal Employees’ Retirement System, denied 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).
request for a waiver, and set a collection schedule. On review, the appellant
argues, among other things, that he did not know that he had to set aside the
Social Security Administration’s award of retroactive benefits, he notified OPM
upon receipt of the award, OPM had egregiously delayed this process, and that he
was entitled to an adjustment of the collection schedule. Petition for Review
(PFR) File, Tab 1 at 5-17. 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2The appellant also claimed on review that there are portions of the hearing,
including his testimony, which are inaudible due to the poor quality of the hearing
recording. PFR File, Tab 1 at 11-12, 17-20. We acknowledge that significant
portions of the audio recording of the hearing are inaudible . Initial Appeal File
(IAF), Tab 38-1. Nevertheless, the administrative judge, who issued the initial
decision, is the same administrative judge who was present during the hearing.
The administrative judge’s credibility determinations are implicitly based on
witness demeanor, and the appellant’s disagreement with the administrative
judge’s findings, without more, is insufficient to overcome the deference to which
such determinations are entitled. See, e.g., Purifoy v. Department of Veterans2
Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016) (explaining that the Board must
give “special deference” to an administrative judge’s demeanor-based credibility
determinations, “[e]ven if demeanor is not explicitly discussed”); Haebe v.
Department of Justice , 288 F.3d 1288, 1301 (Fed. Cir. 2002) (stating that the
Board may overturn demeanor-based credibility determinations only when it has
“sufficiently sound” reasons for doing so). Furthermore, the appellant does not
contend that the administrative judge was incapacitated or otherwise unable to
take notes during the hearing, or observe the testimony of witnesses, which might
call his credibility determinations into question. Accordingly, because the
appellant has only offered uncorroborated and conclusory statements, we discern
no basis to disturb the initial decision.2 Crosby v. U.S. Postal Service ,
74 M.S.P.R. 98, 106 (1997) (explaining that the Board will not disturb an
administrative judge’s findings when he considered the evidence as a whole, drew
appropriate inferences, and made reasoned conclusions on issues of credibility);
Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359
(1987) (same).
2 On review, the appellant alleges that the administrative judge abused his discretion by,
among other things, granting OPM’s extension requests and allowing OPM to submit
late filings, and that he “distort[ed] the facts and truth” such that the initial decision
contained “falsities and outright lies.” PFR File, Tab 1 at 1-6, 8-11, 13-14, 16-17.
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.
Further, there is a presumption of honesty and integrity on the part of administrative
judge that can only be overcome by a substantial showing of personal bias, and the
Board will not infer bias based on the administrative judge’s case-related rulings.
Vaughn v. Department of the Treasury , 119 M.S.P.R. 605, ¶ 18 (2013). We find that the
appellant’s conclusory and unsupported assertions of abuse of discretion and bias are
insufficient to find reversible error. 3
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.4
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any5
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s6
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either
with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 7
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.8 | Bell_AndrewAT-0845-22-0496-I-1_Final_Order.pdf | 2024-08-05 | ANDREW BELL v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. AT-0845-22-0496-I-1, August 5, 2024 | AT-0845-22-0496-I-1 | NP |
790 | https://www.mspb.gov/decisions/nonprecedential/Griffith_Gerald_D_DA-831M-23-0284-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALD GRIFFITH,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
DA-831M-23-0284-I-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Jennifer Duke Isaacs , Esquire, Atlanta, Georgia, for the appellant.
Kevin D. Alexander, Sr. and Alison Pastor , Washington, D.C., for the
agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) determining that the appellant received an overpayment in Civil Service
Retirement System (CSRS) annuity benefits, and he was not entitled to waiver.
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
For the reasons discussed below, we GRANT the appellant’s petition for review.
We AFFIRM the administrative judge’s finding as to the existence and amount of
the $102,239.00 overpayment and her finding that the appellant was not at fault in
the creation of the overpayment. We VACATE the administrative judge’s finding
that the appellant is not entitled to a waiver of the overpayment, and we FIND
INSTEAD that the appellant is entitled to such a waiver. We also DO NOT
SUSTAIN OPM’s reconsideration decision in this regard.
BACKGROUND
¶2The following facts are undisputed. When the appellant retired from his
Aerospace Engineer position under CSRS in September 2000, he chose a reduced
annuity with a maximum survivor annuity benefit for his current spouse, he
indicated that he had a living former spouse and a court order which gave the
former spouse a survivor annuity, and he noted that OPM already had the court
order. Initial Appeal File (IAF), Tab 12 at 146, 163. On March 12, 2001, OPM
notified the appellant that it “processed [his] former spouse’s claim for a court
awarded portion of [his] civil service retirement benefit,” her March 1, 2001
payment was not deducted, OPM intended to deduct it in two installments starting
with the April 1, 2001 payment, and it “intend[ed] to honor the court’s former
spouse survivor annuity award.” Id. at 94. In a March 16, 2001 special notice,
OPM notified the appellant that it had fully reduced his annuity to provide his
former spouse with the partial annuity benefit based on the qualifying court order
and to provide his current spouse with the balance of the maximum allowable
survivor benefit. Id. at 44.
¶3In March 2022, the appellant notified OPM of the death of his former
spouse earlier that month. Id. at 63, 89. OPM acknowledged that it recalculated
his annuity payment based on this information. Id. at 82. On August 24, 2022,
OPM stated that it had removed the former spouse from his annuity and that his
current wife would remain at the maximum survivor benefit. Id. at 63. However,2
OPM disclosed that it committed an error in the original gross annuity rate
retroactive to the commencement date of his annuity in October 2000. Id. OPM
explained that it had only reduced his annuity for a partial survivor benefit for his
former wife, but it had failed to reduce it for the maximum survivor benefit for
his current spouse. Id. OPM therefore determined that the appellant had been
overpaid from October 1, 2000, to August 30, 2022, in the amount of
$102,239.00, and that he was responsible for the overpayment. Id. at 63-65. The
appellant requested reconsideration and a waiver but, on March 31, 2023, OPM
affirmed its initial decision. IAF, Tab 1 at 7-10, Tab 12 at 42-43. OPM indicated
that the appellant would be required to repay the overpayment in 41 monthly
installments of $2,483.19, and a final installment of $428.21. IAF, Tab 1 at 7-10.
¶4The appellant then filed a Board appeal requesting a waiver or an
adjustment of the overpayment. IAF, Tab 1. He requested a hearing. Id. at 2.
Through subsequently designated counsel, the appellant withdrew his request for
a hearing and requested that the administrative judge issue a decision based on the
written record. IAF, Tabs 6, 21. The administrative judge issued an initial
decision in which she found that OPM proved the existence and amount of the
overpayment, and the appellant was without fault in the creation of the
overpayment. IAF, Tab 24, Initial Decision (ID) at 4-6. However, the
administrative judge determined that the appellant did not prove that the
collection of the debt was unconscionable because he did not show that it would
cause him financial hardship, that he detrimentally relied on the overpayment, or
that OPM’s actions or other circumstances, including his age, made waiver
appropriate. ID at 6-9. The administrative judge also found that OPM was not
grossly negligent and that the appellant had not established that he was entitled to
an adjustment of the collection schedule. ID at 7-9. The administrative judge
therefore affirmed OPM’s reconsideration decision. ID at 9. 3
¶5In his petition for review, the appellant reiterates that he is entitled to a
waiver or an adjustment of the overpayment. Petition for Review (PFR) File,
Tab 1. OPM has submitted a response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6Neither party challenges the administrative judge’s finding that OPM
proved the existence and amount of the overpayment and that the appellant was
not at fault in the creation of the overpayment. We discern no error with the
administrative judge’s findings in this regard, and we affirm them herein.
¶7Under 5 U.S.C. § 8346(b), recovery of an annuity overpayment must be
waived when the annuitant is without fault and recovery would be against equity
and good conscience. Kellet v. Office of Personnel Management , 62 M.S.P.R. 1,
4 (1993). The annuitant bears the burden of establishing his entitlement to a
waiver by substantial evidence. Id.; 5 C.F.R. § 831.1407(b). Substantial
evidence is the degree of relevant evidence that a reasonable person, considering
the record as a whole, might accept as adequate to support a conclusion, even
though other reasonable persons might disagree. 5 C.F.R. §§ 1201.4(p),
1201.56(b)(2)(ii). This is a lower standard of proof than preponderance of the
evidence. 5 C.F.R. § 1201.4(p).
¶8As previously noted, we affirm the administrative judge’s finding that the
appellant was without fault in the creation of the overpayment. The question is
whether recovery of the overpayment is against equity and good conscience. The
Board has held that recovery of an overpayment is against equity and good
conscience if the annuitant who is not at fault can establish financial hardship,
detrimental reliance, or unconscionability under the circumstances. Kellet,
62 M.S.P.R. at 4; 5 C.F.R. § 831.1403. The appellant did not specifically contend
before the administrative judge or on review that recovery of the overpayment
was a financial hardship or that he detrimentally relied on the overpayment.
Therefore, we consider only whether recovery of the overpayment is4
unconscionable under the circumstances. The unconscionability standard is a
high one, and a waiver based on this standard will be granted only under
exceptional circumstances. Aguon v. Office of Personnel Management ,
42 M.S.P.R. 540, 549 (1989). Such circumstances may include, but are not
limited to, cases wherein there has been an exceptionally lengthy delay by OPM
in adjusting an annuity, OPM has failed to act expeditiously to adjust an annuity
in the face of specific notice, or when OPM was otherwise grossly negligent.
Kellet, 62 M.S.P.R. at 4; Aguon, 42 M.S.P.R. at 550. The administrative judge
cited the proper legal standards in the initial decision.
¶9However, we disagree with the administrative judge’s conclusion that
recovery of the debt is not unconscionable. ID at 7-9. In pertinent part, the
administrative judge relied on Taylor v. Office of Personnel Management ,
87 M.S.P.R. 214, ¶ 20 (2000), to conclude that collection of the overpayment was
not unconscionable because OPM did not delay once it became aware of the
circumstances that created the debt. ID at 8. We find that Taylor is
distinguishable because, among other things, the amount of the overpayment—
$2,968.00 before the Board waived recovery of part of the debt based on the
then-existing age-of-debt rule, Taylor, 87 M.S.P.R. 214, ¶¶ 5, 8-16—is a small
fraction of the total amount of the overpayment here, and the overpayment only
accrued over approximately 10 years.
¶10Indeed, the parties do not dispute that it took 22 years for OPM to recognize
its error in this matter, the amount of the overpayment is considerable, and the
appellant is now nearly 86 years old. IAF, Tab 12 at 146. The Board has held
that an egregious delay by OPM in adjusting an annuity can, in itself, justify a
finding that a recovery would be unconscionable. Aguon, 42 M.S.P.R. at 549.
For example, in Estate of Konschak v. Office of Personnel Management ,
84 M.S.P.R. 555, ¶¶ 11-14 (1999), the Board determined that recovery would be
unconscionable because the appellant was 82 years old, he had accumulated an
overpayment of $101,702.23 over a 22-year period before OPM discovered an5
obvious omission in his retirement application, and the Board found that Mr.
Konschak was not at fault in the creation of the overpayment. Additionally, in
Kellet, 62 M.S.P.R. at 5, OPM did not adjust the appellant’s annuity for over
10 years despite having received ample notice of the appellant’s election to
provide a survivor annuity upon his remarriage. The Board found that waiver of
the overpayment was warranted and held that a 10-year unexplained delay by
OPM in adjusting an annuity was egregious and recovery of the overpayment
would be unconscionable given the totality of the circumstances. Id.
¶11Based on our review of the totality of the circumstances and relevant case
law, see Aguon, 42 M.S.P.R. at 550, we find that OPM’s delay was egregious, and
recovery of the overpayment is unconscionable. Accordingly, we find that waiver
of the $102,239.00 overpayment amount is warranted in this case.
ORDER
¶12We ORDER OPM to grant the appellant a full waiver of his assessed
overpayment. OPM must complete this action within 20 days of the date of this
decision.
¶13We also ORDER OPM to inform the appellant of all actions taken to
comply with the Board’s order and of the date on which it believes it has fully
complied. See 5 C.F.R. § 1201.181(b). We ORDER the appellant to provide all
necessary information that the agency requests in furtherance of compliance. The
appellant should, if not notified, inquire about the agency’s progress.
¶14Within 30 days of the agency’s notification of compliance, the appellant
may file a petition for enforcement with the regional office to resolve any
disputed compliance issue or issues. The petition should contain specific reasons
why the appellant believes there is insufficient compliance and should include the
dates and results of any communications with the agency about compliance. See
5 C.F.R. § 1201.182(a).6
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS2
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
2 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.7
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 obtain8
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 9
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must 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. 10
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.11 | Griffith_Gerald_D_DA-831M-23-0284-I-1_Final_Order.pdf | 2024-08-05 | GERALD GRIFFITH v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. DA-831M-23-0284-I-1, August 5, 2024 | DA-831M-23-0284-I-1 | NP |
791 | https://www.mspb.gov/decisions/nonprecedential/Davis_Dominic_S_SF-0752-20-0130-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DOMINIC S. DAVIS,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.DOCKET NUMBER
SF-0752-20-0130-I-1
DATE: August 5, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Dominic S. Davis , Hawthorne, California, pro se.
W. Jason Jackson , Long Beach, California, for the agency.
BEFORE
Cathy A. Harris , Chairman
Raymond A. Limon , Vice Chairman
Henry J. Kerner , Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal challenging the agency’s decision to place him in a non-duty
non-pay status as moot. 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).
BACKGROUND
The appellant is employed as a Maintenance Mechanic with the agency.
Initial Appeal File (IAF), Tab 5 at 57. On August 16, 2019, while the appellant
was in a leave without pay (LWOP) status from his Maintenance Mechanic
position, he was arrested on suspicion of assault with a deadly weapon following
an altercation outside of the Postal Service union office. Id. at 27, 38-39, 58.
Following an investigation by the agency’s office of the inspector general, by a
letter dated November 2, 2019, the agency informed the appellant that it was
placing him on an emergency off-duty leave status without pay until further
notice, effective November 4, 2019, based on the August 16, 2019 incident. Id.
at 28, 36-46.
The appellant subsequently filed the instant Board appeal challenging his
placement in an off-duty, unpaid status and requested a hearing. IAF, Tab 1
at 2-5. He did not identify any affirmative defenses throughout the processing of
his appeal. IAF, Tab 19, Initial Decision (ID) at 4. The agency filed a motion to
dismiss the appeal as moot, arguing that it had rescinded the emergency off-duty2
status letter, retroactively placed the appellant in a paid administrative leave
status effective November 3, 2019, and provided him with pay and benefits (less
applicable deductions) for the period of time that he was in an unpaid, off -duty
status, thereby providing him with all of the relief that he would have been
entitled to by this appeal. IAF, Tab 5 at 5-10, 13-14. Without holding the
appellant’s requested hearing, the administrative judge issued an initial decision
dismissing the appeal as moot, concluding that the agency had produced evidence
that it returned the appellant as nearly as possible to the same position that he
would have been in had the agency action not occurred, and therefore returned the
appellant to status quo ante. ID at 3-4 (citing Roja v. Department of the Navy ,
55 M.S.P.R. 618, 621 (1992)).
The appellant has filed a petition for review of the initial decision as well
as a supplement to his petition for review. Petition for Review (PFR) File,
Tabs 1-2. He argues that new and material evidence exists demonstrating that he
has not been returned to status quo ante, and therefore his appeal is not moot.
IAF, Tab 1 at 3-5. Specifically, he argues that the emergency off-duty status
letter (identified as the “Article 16.7” letter) was not actually rescinded, and he
provides email correspondences and a copy of a filing the agency submitted in
another Board case purportedly showing that the agency is moving forward to
arbitration regarding the emergency off-duty placement letter. PFR File, Tab 1
at 3-15, Tab 2. The appellant also restates the argument he made below that he
has not been returned to status quo ante because he has not been placed in an
active duty status. PFR File, Tab 1 at 4-5; IAF, Tab 16 at 4. Finally, the
appellant argues for the first time on review that he has not been returned to a
status quo ante because he has not been awarded compensatory damages and
overtime pay that he would have received if he had returned to work, and he
requests non-pecuniary damages based on the exacerbation of his PTSD condition
as a result of the failure to return him to duty. PFR File, Tab 1 at 5. The agency3
has filed a response in opposition to the petition for review, and the appellant has
not filed a reply. PFR File, Tab 6.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s jurisdiction is determined by the nature of an agency’s action
at the time an appeal is filed with the Board. Sredzinski v. U.S. Postal Service ,
105 M.S.P.R. 571, ¶ 4 (2007). A suspension lasting more than 14 days is an
adverse action within the Board’s jurisdiction. 5 U.S.C. §§ 7512(a)(2), 7513(d).
An agency’s unilateral modification of its adverse action after an appeal has been
filed cannot divest the Board of jurisdiction unless the appellant consents to such
divesture or unless the agency completely rescinds the action being appealed.
Sredzinski, 105 M.S.P.R. 571, ¶ 4 . Thus, the Board may dismiss an appeal as
moot if the appealable action is cancelled or rescinded by the agency. Id. For an
appeal to be deemed moot, the agency’s rescission of the appealed action must be
complete, and the employee must be returned to the status quo ante. Hess v. U.S.
Postal Service, 123 M.S.P.R. 183, ¶ 5 (2016); see Murphy v. Department of
Justice, 107 M.S.P.R. 154, ¶ 6 (2007) (explaining that for an appeal to be
rendered moot, an appellant must receive all of the relief that he could have
received if the matter had been adjudicated and he had prevailed). Status quo
ante relief generally requires that the appellant be placed back in his former
position or in one substantially equivalent in scope and status to his former
position. Hess, 123 M.S.P.R. 183, ¶ 5. Status quo ante relief also requires that
the agency remove all references to the rescinded action and restore to the
appellant any lost back pay or benefits. Id.
Ordinarily, if an appellant raises a claim of compensatory damages for
discrimination in connection with an appealable action, the agency’s complete
rescission of the action appealed does not afford him all of the relief available
before the Board and the appeal is not moot. Hess v. U.S. Postal Service ,
124 M.S.P.R. 40, ¶ 8 (2016). Lack of mootness in such circumstances is4
premised on the Board’s ability to award compensatory damages. Id., ¶¶ 8, 19. If
an appeal is not truly moot despite cancellation of the action under appeal, the
proper remedy is for the Board to retain jurisdiction and to adjudicate the appeal
on the merits. Fernandez v. Department of Justice , 105 M.S.P.R. 443, ¶ 5 (2007).
The administrative judge correctly concluded that the appeal was moot.
The Board generally has held that placing an appellant on administrative
leave following the cancellation of an adverse action does not constitute a
complete rescission of the agency action and thus a return to the status quo ante.
Sredzinski, 105 M.S.P.R. 571, ¶ 8. However, the Board has also found that an
appeal was moot despite an agency’s failure to return the appellant to a duty
status where an appellant was in a non-duty status prior to the rescinded action
for reasons unrelated to the action being appealed. See, e.g., Sherrod v.
Department of the Navy , 90 M.S.P.R. 347, ¶¶ 16-18 (2001) (finding that the
agency returned the appellant to the status quo ante when it placed him on LWOP
status upon rescinding the removal, because the appellant should have been in an
approved leave status for a compensable injury prior to his removal); Sellman v.
U.S. Postal Service , 63 M.S.P.R. 145, 154 n.3 (1994) (where the appellant was in
an approved leave status prior to his removal, the agency was not required to
return the appellant to active duty when it cancelled its removal action and placed
him in a LWOP status).
In the instant case, the record reflects that prior to the issuance of the
November 2, 2019 emergency off-duty placement letter the appellant had been in
an LWOP status for his Maintenance Mechanic position since April 2, 2018, in
order to fulfill his duties as the General President of the union. IAF, Tab 5 at 28,
58. Consequently, we agree with the administrative judge’s finding that the
agency returned the appellant to the status quo ante when it placed him in an
administrative leave status and retroactively paid him all lost wages and benefits2
2 Although the administrative judge concluded that the agency processed the appellant’s
lost wages and benefits as back pay, the record instead reflects that it placed him in an5
after rescinding the emergency placement letter because he would have otherwise
been in an LWOP status if not for the issuance of the emergency placement letter.
See Sherrod, 90 M.S.P.R. 347, ¶¶ 16-18; Sellman, 63 M.S.P.R. at 154 n.3.
Accordingly, we agree with the administrative judge’s conclusion that, even
though the agency failed to return the appellant to a duty status, this appeal is still
moot because the appellant was in a non-duty status prior to the rescinded action
for reasons unrelated to the action being appealed, and thus the agency was not
required to return the appellant to active duty status after it rescinded the
emergency placement letter.3 ID at 4 n.2.
The appellant’s remaining arguments do not provide a basis for granting his
petition for review.
Regarding the appellant’s argument that new and material evidence exists
demonstrating that the emergency placement letter was not actually rescinded
because the matter is still being litigated in arbitration proceedings, as the
administrative judge concluded and as the agency correctly observes, the sworn
administrative leave status retroactive to November 3, 2019, and paid him for the lost
pay and benefits for the period of time that he was placed on emergency off-duty leave
status without pay . IAF, Tab 18 at 7-19; ID at 3-4.
3 Even if the appellant had demonstrated that he was in a duty status at the time the
agency issued the emergency placement letter, we would still conclude that the agency
was not obligated to return him to a duty status because the agency has proven that it
had a strong overriding interest in retaining the appellant in a non-duty status. See
Gamel v. Department of the Navy , 43 M.S.P.R. 168, 170-72 (1989 ) (explaining that an
agency may not be required to return an employee to his former position despite the
Board’s reversal of his removal if the agency has a strong overriding interest for not
doing so). The agency argued both below and on review that the appellant
demonstrated a “callous disregard for his coworkers[’] safety” when he brandished a
loaded handgun and threatened to kill another person in front of the Postal Service
union office, for which he was later charged with a felony. IAF, Tab 5 at 9-10, 27,
Tab 8 at 10; PFR File, Tab 6 at 6. Consequently, we would conclude, in the alternative,
that the agency adequately demonstrated that it had a strong overriding interest in
placing the appellant in a non-duty status, based on the existing record. See Dalton v.
Department of Justice , 66 M.S.P.R. 429, 434 (1995 ) (finding that an agency’s concern
over an appellant’s alleged improper sexual contacts with inmates and the presence of
an ongoing investigation established compelling reasons for not returning him to status
quo ante).6
declaration submitted by the agency makes clear that the emergency placement
letter “has not and never will” enter the appellant’s personnel file, and was
effectively rescinded. IAF, Tab 5 at 14; ID at 3; PFR File, Tab 6 at 5-6.
Although the appellant continues to litigate the issuance of the now-rescinded
emergency placement letter in a separate arbitration proceeding, that fact has no
bearing on whether the emergency placement letter was rescinded. PFR File,
Tab 1 at 5; see Friends of the Earth, Inc. v. Landlaw Environmental Services
(TOC), Inc., 528 U.S. 167, 189 (2000) (reflecting that the burden of proving
mootness is on the moving party); Price v. U.S. Postal Service , 118 M.S.P.R. 222,
¶ 13 (2012) (noting that status quo ante relief requires that the agency remove all
references to the rescinded action from the employee’s personnel record); Harris
v. Department of the Air Force , 96 M.S.P.R. 193, ¶ 6 (2004) (same); see also
Social Security Administration v. Whittles ey, 59 M.S.P.R. 684, 692 (1993)
(stating that a sworn statement has greater weight than one that is not
sworn), aff’d, 39 F.3d 1197 (Fed. Cir. 1994) (Table). Consequently, we agree
that the agency met its burden of proving that it has purged the record of this
action from the appellant’s personnel file.
Similarly, there is no support for the appellant’s claim that the agency’s
filing in another Board appeal proves that the emergency placement letter was
never rescinded. PFR File, Tab 2; see Davis v. U.S. Postal Service , MSPB
Docket No. SF-0752-20-0422-I-1, Initial Appeal File (0422 AF), Tab 5. The
matter at issue in that separate Board appeal concerned the agency’s subsequent
decision to place the appellant on indefinite suspension, effective April 1, 2020—
not the November 2, 2019 emergency placement determination. 0422 AF, Tab 1
at 5, 7-8; IAF, Tab 8 at 14-15.4
Regarding the appellant’s claim, raised for the first time on review, that he
has not been returned to a status quo ante because he has not been awarded
4 On October 27, 2020, an initial decision was issued in MSPB Docket No.
SF-0752-20-0422-I-1, affirming the agency’s indefinite suspension action. 0422 AF,
Tab 26, Initial Decision. Neither party filed a petition for review.7
compensatory damages, overtime pay, and non-pecuniary damages, as previously
noted, a viable outstanding claim of compensatory damages based on
discrimination will ordinarily preclude dismissal of an appeal as moot. PFR File,
Tab 1 at 5; see Hess, 124 M.S.P.R. 40, ¶ 8. Nevertheless, the Board generally
will not consider an argument raised for the first time on review absent a showing
that it is based on new and material evidence not previously available despite the
party’s due diligence. See Hodges v. Office of Personnel Management ,
101 M.S.P.R. 212, ¶¶ 7-9 (2006) (refusing to consider the appellant’s arguments,
raised for the first time on review, in support of her position that she had good
cause for untimely refiling her appeal) (citing Banks v. Department of the Air
Force, 4 M.S.P.R. 268, 271 (1980)); 5 C.F.R. § 1201.115(d). The appellant did
not allege discrimination in connection with his placement on emergency leave or
raise any affirmative defenses below, or allege that he was entitled to any
compensatory or pecuniary damages or overtime pay, and he has provided no
explanation for why he could not have raised these arguments below.
Accordingly, we will not consider them now.5 For the foregoing reasons, we
deny the petition for review and affirm the initial decision, which dismissed the
appellant’s appeal challenging the agency’s decision to place him in a non-duty
non-pay status as moot.
5 Even if we were to consider the appellant’s argument that he is entitled to overtime
pay, the Board lacks jurisdiction to award pay enhancements such as overtime pay in
this circumstance because placement on administrative leave is not an appealable
action. See Mattern v. Department of the Treasury , 88 M.S.P.R. 65, ¶¶ 10-16 (2001 ),
aff’d, 291 F.3d 1366 (Fed. Cir. 2002); see also Rittgers v. Department of the Army ,
123 M.S.P.R. 31, ¶ 12 (2015) (stating that the Board lacks jurisdiction to award back
pay for pay enhancements such as overtime pay lost during periods of administrative
leave preceding an appealable action). 8
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.9
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 any10
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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’s11
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)
(9)(A)(i), (B), (C), or (D),” then you may file a 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. 12
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.13 | Davis_Dominic_S_SF-0752-20-0130-I-1_Final_Order.pdf | 2024-08-05 | DOMINIC S. DAVIS v. UNITED STATES POSTAL SERVICE, MSPB Docket No. SF-0752-20-0130-I-1, August 5, 2024 | SF-0752-20-0130-I-1 | NP |
792 | https://www.mspb.gov/decisions/nonprecedential/Dinkler_Terry_L_CH-0831-21-0056-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERRY L. DINKLER,
Appellant,
v.
OFFICE OF PERSONNEL
MANAGEMENT,
Agency.DOCKET NUMBER
CH-0831-21-0056-I-1
DATE: August 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Pamela Dinkler , Clarksburg, Ohio, for the appellant.
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 his appeal of the September 3, 2020 reconsideration decision of the
Office of Personnel Management (OPM) regarding his application for survivor
annuity benefits for lack of jurisdiction. On petition for review, the appellant
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
offers a “[s]ummary of the case up to this date” and provides additional medical
documents to support his disability claim.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 With his petition for review, the appellant has included a document he identifies as a
“full non-release” or a “Hippa (sic) Non Release,” expressing his desire to limit the
transmission of medical and other types of information included in his Board appeal.
Petition for Review (PFR) File, Tab 1 at 3-4. Under the Health Insurance Portability
and Accountability Act of 1996 (HIPAA), a covered entity may not use or disclose
protected health information, unless such use or disclosure falls within certain
categories of permitted uses and disclosures. See 45 C.F.R. § 164.502(a). A “covered
entity” under HIPAA is defined as: (1) a health plan; (2) a health care clearinghouse; or
(3) a health care provider who transmits any health information in electronic form in
connection with a transaction covered by the relevant subchapter. 45 C.F.R. § 160.103.
Consequently, the Board is not a “covered entity” under HIPAA and thus is not bound
by the disclosure restrictions discussed in that provision, so we need not consider the
appellant’s request.
3 Although the record does not contain an official document memorializing OPM’s
rescission of the September 3, 2020 reconsideration decision, the appellant has not
disputed that it did so. PFR File, Tab 1. Accordingly, we have accepted as true OPM’s
assertion that it rescinded the reconsideration decision. Initial Appeal File (IAF),
Tab 8. If OPM completely rescinds a reconsideration decision, the Board no longer
retains jurisdiction over the appeal in which that reconsideration decision was at issue,
and the appeal must be dismissed. Glasgow v. Office of Personnel Management ,
103 M.S.P.R. 531, ¶ 5 (2006 ). Thus, because OPM rescinded the reconsideration
decision, we do not have jurisdiction over this appeal. IAF, Tab 8; IAF, Tab 12, Initial2
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.
Decision. If OPM fails to authorize payment to the appellant for the requested benefits
as stated in its rescission letter or otherwise indicates that it does not intend to issue a
final decision on the appellant’s survivor annuity application, the appellant may file
another appeal with the appropriate regional office consistent with the Board’s
regulations. See Okello v. Office of Personnel Management , 120 M.S.P.R. 498, ¶ 14
(2014) (stating that the Board may assume jurisdiction when OPM has refused or
improperly failed to issue a final decision); Fagone v. Office of Personnel Management ,
85 M.S.P.R. 49, ¶ 9 (2000 ) (same). Additionally, because the Board lacks jurisdiction
over the appeal based on OPM’s rescission of its reconsideration decision, we have no
authority to consider the appellant’s offer to “settle” the appeal or his request that the
Board order OPM to award him alternative benefits in the form of medical insurance
coverage. PFR File, Tab 1 at 14.
4 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.3
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board , 582 U.S. 420 (2017). If you have a representative in this case,4
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court -appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507 5
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.5 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
5 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 6
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.7 | Dinkler_Terry_L_CH-0831-21-0056-I-1_Final_Order.pdf | 2024-08-02 | TERRY L. DINKLER v. OFFICE OF PERSONNEL MANAGEMENT, MSPB Docket No. CH-0831-21-0056-I-1, August 2, 2024 | CH-0831-21-0056-I-1 | NP |
793 | https://www.mspb.gov/decisions/nonprecedential/Reavis_Kurt_H_PH-0752-17-0242-I-2_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KURT H. REAVIS,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
PH-0752-17-0242-I-2
DATE: August 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Andrew Poulos, Jr. , Hamilton, New Jersey, for the appellant.
Stacey Rita Conroy , Esquire, Philadelphia, Pennsylvania, 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
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).
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 period for which the agency proved the appellant was absent without leave
(AWOL) and the analyses of his claim under the Family and Medical Leave Act
of 1993 (FMLA) and his affirmative defenses, we AFFIRM the initial decision.
BACKGROUND
The appellant was a Nursing Assistant with the Veterans Health
Administration. Initial Appeal File (IAF), Tab 8 at 5. On November 27, 2016, he
was arrested by local police while off duty for driving while under the influence
(DUI). Refiled Appeal File (RAF), Tab 16 at 27, 33-34. Because the appellant
was unable to pay bail, he was placed in custody pending his trial, scheduled for
December 28, 2016. Id. at 28-29. The appellant contacted his then-supervisor,
supervisor A, and requested leave to cover his absence through December 28,
2016. Id. at 28-29, 58-59. She approved his request. Id. at 58.
The appellant’s court date was postponed, first to January 11, 2017, and
then to February 17, 2017. Id. at 29, 33. Following a bail reduction hearing in
March 2017, the appellant was released on March 28, 2017. Id. at 30, 33, 37-38.
A trial was held in May 2017, at which point the appellant was found guilty of the
DUI charge. RAF, Tab 16 at 33-34, 38.2
In the meantime, when his trial was first delayed, on December 28, 2016,
the appellant left a voicemail message with supervisor A that he anticipated
remaining in a leave without pay status (LWOP). Id. at 29, 59. The agency did
not respond to this message. Id. On December 31, 2016, after supervisor A
retired, a new supervisor, supervisor B, became the appellant’s new supervisor.
Id. at 59. On January 18, 2017, the agency mailed the appellant a letter informing
him that supervisor A had retired and was replaced by supervisor B, and that the
appellant was considered AWOL beginning January 4, 2017. IAF, Tab 3 at 80-
81. The letter mistakenly stated that the appellant had not contacted the agency
on December 28, 2016. Id. at 80. The appellant received the letter on
January 23, 2017. RAF, Tab 16 at 29. He thereafter attempted to call supervisor
B, but was unable to reach her. RAF, Tab 16 at 29-30. The appellant’s girlfriend
also called supervisor B. Id. at 29. Although she spoke with supervisor B, the
supervisor declined to discuss the appellant’s employment with her, advising her
that the appellant would have to contact supervisor B “directly.” Id. at 29, 45-46,
60.
On February 24, 2017, the agency proposed to remove the appellant based
on three charges: failure to follow leave procedures, unauthorized absence, and
AWOL. IAF, Tab 8 at 6-17. The three charges are all based on the appellant’s
absence from January 9 to February 23, 2017, when he was incarcerated. Id.
The appellant submitted a written response. IAF, Tab 3 at 38-39; RAF, Tab 16
at 30. The deciding official sustained all three charges and concluded that
removal was appropriate. IAF, Tab 8 at 23-24. The agency removed the
appellant effective April 14, 2017. Id. at 5.
The appellant filed the instant appeal. IAF, Tab 1 at 4. After he waived
his right to a hearing, the administrative judge issued an initial decision based on
the written record. RAF, Tab 9 at 4, Tab 19, Initial Decision (ID) at 2.
The administrative judge did not sustain the charges of failure to follow leave
procedures or unauthorized absence, but sustained the charge of AWOL and3
upheld the appellant’s removal. RAF, Tab 19, Initial Decision (ID) at 2-4, 8.
The administrative judge was unconvinced by the appellant’s allegations of
harmful procedural error, including the appellant’s claims of the agency
inappropriately recommending he take leave under the FMLA and that the
deciding official considered alleged misconduct not outlined in his proposed
removal as an aggravating factor. ID at 4-6.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded to the petition for review, and the
appellant has replied. PFR File, Tabs 4-5.
DISCUSSION OF ARGUMENTS ON REVIEW
We affirm as modified the administrative judge’s finding that the agency proved
its AWOL charge.
To prove an AWOL charge, an agency must show, by preponderant
evidence, that the employee was absent, and that his absence was not authorized
or that his request for leave was properly denied. Rojas v. U.S. Postal Service ,
74 M.S.P.R. 544, 548 (1997). The administrative judge found that the appellant
was absent during the January 9 to February 23, 2017 period for which the agency
charged him with AWOL. ID at 3. We decline to disturb this finding, which the
parties do not dispute on review. The administrative judge also found that the
appellant’s absence was not authorized. Id. On review, the appellant disagrees
with this finding. PFR File, Tab 1 at 14-16. We agree with the appellant, in part,
and conclude that the agency failed to prove that the appellant’s absence from
January 9 to 17, 2017, was unauthorized. Nonetheless, we conclude that the
agency proved its AWOL charge based on the appellant’s unauthorized absence
from January 18 to February 23, 2017. We modify the initial decision
accordingly.4
The administrative judge incorrectly sustained specifications
relating to the appellant’s absence from January 9 to 17, 2017.
The appellant argues on review, as he did below, that he requested a “leave
of absence” for the period beginning December 28, 2016, and “[n]owhere in the
record was there evidence that the agency denied the Appellant’s request[].”
PFR File, Tab 1 at 14; IAF, Tab 1 at 4. We agree that the agency failed to meet
its burden to prove this request was not granted.
A detailed proposal notice can constitute part of the agency’s valid proof of
its charges. Thompson v. Department of the Army , 122 M.S.P.R. 372, ¶ 12
(2015). However, the proposal notice on its own is not enough for the agency to
meet its burden of proof; it must be accompanied by corroborating evidence. Id.
The appellant was on approved leave during his incarceration until
December 28, 2016. RAF, Tab 16 at 28-29, 58-59. Here, the statement in the
proposal notice that the appellant was AWOL beginning January 4, 2017, is
premised on the inaccurate assertion that the appellant did not contact the agency
between December 9, 2016, and January 18, 2017. IAF, Tab 8 at 18. In fact, the
parties agree that on December 28, 2016, the appellant contacted supervisor A
and left a voicemail requesting a leave of absence until further notice.
RAF, Tab 16 at 29, 59; IAF, Tab 3 at 70-71.
Further, the record lacks evidence establishing that the appellant’s
supervisors did not approve his December 28, 2016 request for a leave of
absence. There is some evidence in the record suggesting that supervisor A may
not have considered the appellant’s voicemail as a proper or complete request for
leave. IAF, Tab 3 at 70-71. Specifically, the appellant provided handwritten
notes from supervisor A below, indicating that the appellant needed to submit
either “the FMLA form – or ask for leave without pay” in connection with his
December 28, 2016 voicemail message. IAF, Tab 3 at 70-71; RAF, Tab 16 at 21.
As another example, the agency indicated in response to the appellant’s discovery
requests that, in his December 28, 2016 voicemail, the appellant “stated he would5
send a request for leave of absence.” RAF, Tab 16 at 59. However, these
statements are not sworn or authenticated, and do not specifically address whether
the appellant’s December 28, 2016 request for leave was denied. IAF, Tab 3 at 1-
2, 68; RAF, Tab 16 at 60; see Adamsen v. Department of Agriculture ,
116 M.S.P.R. 331, ¶ 17 (2011) (explaining that an unsworn statement identifying
no firsthand knowledge of the relevant events and no factual basis to support the
assertions therein is, on its face, unreliable hearsay entitled to little weight).
The record also does not indicate whether supervisor A advised supervisor
B of the appellant’s voicemail message from December 28, 2016. IAF, Tab 3 at
70-71, Tab 8 at 18; RAF, Tab 16 at 59, 64. Similarly, there is no evidence as to
whether supervisor B approved or denied the appellant’s December 28, 2016
request for a leave of absence. There is no correspondence, for example, from the
agency to the appellant regarding this request. IAF, Tab 3 at 80; RAF, Tab 16 at
29. Therefore, we find that the agency failed to meet its burden of proving
specifications related to the appellant’s absence from January 9 to 17, 2017.
We modify the initial decision accordingly.
The administrative judge correctly sustained the remaining AWOL
specifications, relating to the appellant’s absence from January 18
to February 23, 2017.
The agency’s remaining AWOL specifications cover the period
January 18 to February 23, 2017.2 IAF, Tab 8 at 14-17. We agree with the
administrative judge that the agency proved these specifications. ID at 3-4.
Based on the agency’s proof of these specifications, we also agree with the
administrative judge that the agency proved the charge. See Burroughs v.
Department of the Army , 918 F.2d 170, 172 (Fed. Cir. 1990) (explaining 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); Cole v. Department of the Army , 78 M.S.P.R. 288, 291-92 (1998)
2 The agency has a duplicate specification for January 20, 2017. IAF, Tab 8 at 15-16.
For purposes of our analysis, we count the absence only once.6
(affirming an administrative judge’s determination that an agency proved an
AWOL charge based on a portion of the alleged absence).
To the extent the appellant argues that his entire absence was authorized
due to his December 28, 2016 request for a leave of absence, we are not
persuaded. PFR File, Tab 1 at 13-15. As indicated above, a detailed proposed
removal accompanied by corroborating evidence can constitute proof of an
agency’s charge. Thompson, 122 M.S.P.R. 372, ¶ 12. The agency’s notice of
proposed removal accurately represents that the agency sent the appellant a letter
on January 18, 2017, instructing him to provide information. IAF, Tab 8 at 18.
The January 18, 2017 letter, which is contained in the record, corroborates that
the agency advised the appellant that it considered him AWOL, and instructed
him to report to work or contact the agency to request leave. IAF, Tab 3 at 80-81.
The appellant admits that the letter was delivered to his address 5 days after it
was sent. IAF, Tab 3 at 82-83; RAF, Tab 16 at 29; Marcantel v. Department of
Energy, 121 M.S.P.R. 330, ¶¶ 5-9 (2014) (explaining that under 5 C.F.R.
§ 1201.22(b)(3), an appellant is deemed to have received an agency decision
letter on the date it was received by his father at the address the appellant
provided to the agency, even if the appellant received it later). Further, as
discussed above, the appellant does not dispute that he was absent during the
period at issue. We find that the proposal notice, corroborated by the agency’s
letter, is sufficient proof that as of January 18, 2017, the appellant’s absence was
unauthorized. See Gill v. Department of the Navy , 34 M.S.P.R. 308, 311-12
(1987) (determining that an agency proved an appellant was AWOL based on a
detailed notice of proposed removal supported by a memoranda from the agency
to the appellant reflecting that she was considered AWOL). Thus, the agency has
proved that the appellant was absent beginning January 18, 2017, and that this
absence was not authorized. Rojas, 74 M.S.P.R. at 548.
Proof of these two elements, however, is not always sufficient to prove the
charge. If an employee has requested leave to cover his absences, an AWOL7
charge will be sustained only if the agency establishes that his requests were
properly denied. Savage v. Department of the Army , 122 M.S.P.R. 612, ¶ 28
(2015), overruled in part on other grounds by Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶¶ 23-25; Rojas, 74 M.S.P.R. at 548.
The administrative judge found that the appellant’s attempts to contact his
supervisor did not excuse his absence. ID at 3. The appellant argues that his
absence should have been excused because he attempted to communicate with the
agency by “alternate means.” PFR File, Tab 1 at 15. We agree with the
administrative judge.
Although the appellant does not specify the alternate means to which he is
referring on review, he appears to be arguing that attempts his girlfriend made on
his behalf to contact supervisor B after receiving the agency’s January 18, 2017
letter should have been considered requests for leave. Id. at 10, 15. We are not
persuaded. The appellant argued below that supervisor B improperly declined to
speak with the appellant’s girlfriend about his employment. RAF, Tab 16 at 13,
29, 45-46, 60. The appellant has not presented evidence of an agency policy or
practice of considering requests for leave made by family members or friends.
In fact, the agency consistently advised first the appellant’s mother, and then his
girlfriend, that the appellant needed to request leave himself. IAF, Tab 16 at 42,
45-46; RAF, Tab 3 at 69; see Cole, 78 M.S.P.R. at 292 (finding an administrative
judge erred in finding, contrary to the evidence in the record, that an agency had a
practice of granting informal leave requests made by third parties and that,
therefore, the administrative judge also erred in mitigating the penalty for AWOL
based on this practice).
Further, even if the appellant’s girlfriend made valid requests for leave, the
denial of those requests would be reasonable. Johnson v. Defense Logistics
Agency, 54 M.S.P.R. 370, 372-73 (1992). An agency is not required to grant an
employee LWOP to cover an absence due to his arrest and incarceration.
Id. at 372. Accordingly, we find that the agency properly designated the8
appellant as AWOL beginning January 18, 2018, and the following 5-week
absence was sufficient to prove its charge. See Burroughs, 918 F.2d at 172;
Cole, 78 M.S.P.R. at 291. Because we agree with the administrative judge’s
finding that the agency proved its charge, we find any error in sustaining all of
the agency’s specification was not prejudicial to the appellant’s substantive
rights. Therefore, it provides no basis for reversal of an initial decision.
See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984)
(observing that an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
We affirm, as modified, the administrative judge’s determination that
a different result is not warranted under the FMLA.
On review, the appellant re-raises his claim that the agency improperly
urged him to seek FMLA protection for his absence. PFR File, Tab 1 at 16-17.
The administrative judge analyzed this claim as one of alleged harmful procedural
error. ID at 5. She found that it was improper for the appellant’s supervisors to
suggest he apply for FMLA protection for his absence because his absence was
not related to any medical condition. Id. However, she concluded that any error
was harmless because the appellant did not request leave under the FMLA. Id.
Although not entirely clear, the appellant seems to argue on review that the
agency improperly relied on his failure to request FMLA in support of its AWOL
charge. PFR File, Tab 1 at 16-17; RAF, Tab 16 at 20-21. We modify the
administrative judge’s analysis, but find no basis to reverse the initial decision, as
the outcome remains the same.3 See Panter, 22 M.S.P.R. at 282.
When the facts, either specifically raised by the appellant or otherwise
shown by the record evidence, implicate the FMLA relative to a leave-related
3 We also modify the initial decision to the extent the administrative judge found that
the agency acted wrongfully in suggesting the appellant request FMLA protection for
his absence. ID at 5. An agency is obligated to “inform its employees of their
entitlements and responsibilities” under the FMLA. 5 C.F.R. § 630.1203(g).
Regardless of the appellant’s incarceration, we discern nothing improper in the agency
providing that notice here. 9
charge, the Board will consider and apply the FMLA without shifting the burden
of proof to the appellant. Ellshoff v. Department of the Interior , 76 M.S.P.R. 54,
73 (1997). Thus, contrary to the administrative judge’s analysis in the initial
decision, the Board does not treat a claim that an agency improperly denied an
appellant leave under the FMLA as an affirmative defense. Id. at 73-74.
However, because the appellant asserts he was not eligible for protection under
the FMLA, the administrative judge did not err in finding that the agency proved
its charge. ID at 3-5; RAF, Tab 16 at 21.
To the extent the appellant asserts that the agency used “his failure to apply
[for FMLA] as a justification for its AWOL charge,” the record does not support
his claim. PFR File, Tab 1 at 16; RAF, Tab 16 at 20-21. The appellant cites to
notes, emails, and an internal memorandum from supervisors A and B, in addition
to the agency’s January 18, 2017 letter to him regarding his leave status.
PFR File, Tab 1 at 16; RAF, Tab 16 at 21. While these documents reflect that the
appellant’s supervisors considered him AWOL and he did not invoke FMLA, they
do not suggest that the agency’s determination that the appellant was AWOL
resulted from his failure to invoke FMLA. IAF, Tab 3 at 69-72, 78, 80-81;
RAF, Tab 16 at 58-59, 66. Further, the proposing and deciding officials were
individuals other than supervisor A and B. IAF, Tab 8 at 19, 26. The proposal
notice and removal decision do not reflect that these officials relied on the
appellant’s failure to request FMLA as a factor relating to either the charge or the
penalty. Id. at 6-29.
We decline to disturb the administrative judge’s finding that the agency failed to
meet its burden of proof regarding the remaining charges.
The administrative judge found that the agency failed to prove the charge
of failure to follow leave procedures because of the appellant’s attempts to follow
the procedures. ID at 2-3. The administrative judge additionally found that the10
agency failed to prove the charge of unauthorized absence because it was
repetitive and based on same set of facts as the AWOL charge.4 ID at 3.
We agree with the administrative judge that the appellant did not prove his
harmful error claims, but modify her reasoning.
The administrative judge found that the appellant did not prove his claims
of harmful error. ID at 4-6. Most of these determinations are not challenged on
review, and we decline to disturb them. See 5 C.F.R. § 1201.115 (providing that
the Board normally will consider only issues raised in a timely filed petition or
cross petition for review). Instead, we turn directly to the disputed findings. Id.
We modify the initial decision to find that the agency did not violate
the appellant’s due process rights
The appellant alleged below that the agency violated its own policies by
failing to “afford[] [him the] opportunity” to make an oral reply to his proposed
removal. RAF, Tab 16 at 23-24. The administrative judge found that the
appellant’s request for an oral reply was untimely and he failed to show that the
agency would have taken no discipline, or lesser discipline, as the result of an
oral reply. ID at 6. The appellant reasserts his harmful error claim and argues
that the agency violated his due process rights. PFR File, Tab 19-22.
The appellant does not appear to have raised this due process claim below and the
administrative judge did not address it. IAF, Tab 16 at 23-24. Nonetheless, we
4 Although not explicitly stated, the administrative judge appears to have implicitly
found that the charge of unauthorized absence and AWOL merged. ID at 3. We see no
reason to disturb this finding. See Hawes v. Office of Personnel Management ,
122 M.S.P.R. 341, ¶ 6 (2015) (finding that an administrative judge appropriately
merged charges based on the same set of underlying facts); McNab v. Department of the
Army, 121 M.S.P.R. 661, ¶ 4 n.3 (2014 (finding that an administrative judge properly
merged specific absences that were listed under both an AWOL charge and a charge of
failure to follow leave restriction letter procedures). Ordinarily, when one charge as to
which an agency met its burden of proof merges into another charge, the Board
considers both charges proven. See Shiflett v. Department of Justice , 98 M.S.P.R. 289,
¶¶ 5-6, 12 (2005) (concluding that when two charges merged the agency proved both
charges). However, because the distinction does not affect the outcome here, we see no
need to revisit the administrative judge’s finding that the agency did not prove its
unauthorized absence charge. ID at 3; see Panter, 22 M.S.P.R. at 282. 11
have exercised our discretion to consider it on review. See Holton v. Department
of the Navy, 123 M.S.P.R. 688, ¶ 28 (2016) (exercising discretion to consider a
due process issue on review although it was unclear if it was raised below),
aff’d, 884 F.3d 1142 (Fed. Cir. 2018). We modify the initial decision to find that
the agency did not deny the appellant due process.
The agency advised the appellant in its proposed removal that he could
reply orally, in writing, or both. IAF, Tab 8 at 18. It provided the appellant with
14 calendar days from receipt to do so. Id. The appellant indicated below that he
received the proposed removal “[o]n or about the first week of March 2017.”
RAF, Tab 16 at 30. He submitted a written reply on March 6, 2017, and the
deciding official considered it. IAF, Tab 3 at 38-39, Tab 8 at 23; RAF, Tab 16
at 30.5
However, we are unable to find any evidence supporting the appellant’s
claim that he made a request to present an oral reply. The failure to hear a
requested oral reply is a violation of minimum due process that requires reversal
of an agency’s action. Alford v. Department of Defense , 118 M.S.P.R. 556,
¶¶ 6-7 (2012). However, if the appellant wanted to make an oral response to the
proposed removal, it was incumbent on him to make an unequivocal request of
the deciding official to afford him one. White v. Department of Veterans Affairs ,
120 M.S.P.R. 405, ¶ 18 (2013). In White, the Board found that an email
requesting official time for an appellant to prepare his written and oral replies
was not an unequivocal request to present an oral reply. Id. In so finding, the
5 Assuming all facts in the appellant’s favor, we presume he received the notice no later
than March 6, 2017, the day he submitted his written reply. Although the appellant
argues on review that the administrative judge found his written reply was untimely, we
disagree. PFR File, Tab 1 at 20. Rather, in context, the administrative judge’s
statement that the appellant “made a written reply, and it was beyond the time period
for him to reply to the proposal” referred to the appellant’s failure to request an oral
reply by March 20, 2017, the 14th calendar day after he received the proposed removal.
ID at 6. Thus, we discern no error. 12
Board reasoned that the focus of the appellant’s request was on official time and
he did not make the request to the deciding official. Id.
The evidence of a request to make an oral reply is similarly lacking here.
In his written reply, the appellant indicated that he expected his “situation,”
presumably referring to his incarceration, to be “cleared up by 3/28/17 . . . and
[he] look[ed] forward to talking” to the agency at that point. IAF, Tab 3 at 39.
He addressed his written reply both to supervisor B and the individual designated
as the contact point for his written and oral replies. IAF, Tab 3 at 38, Tab 8 at
18. However, the statement that he was looking forward to talking to the agency
does not convey that he was requesting something. IAF, Tab 3 at 38. Rather it
suggests the appellant was politely closing his written response, particularly
because it appears at the end of the letter. Id.
The appellant also did not provide any evidence that he otherwise sought to
make an oral reply. In particular, although his representative asserted in his close
of record submission below that the appellant made such a request to supervisor
B, the accompanying sworn statement from the appellant does not support this
contention. RAF, Tab 16 at 23, 30-31; see Hendricks v. Department of the Navy ,
69 M.S.P.R. 163, 168 (1995) (explaining that the statements of a party’s
representative in a pleading do not constitute evidence). It reflects that the
appellant told supervisor B that he “would be sending her a letter that indicates
that [he] intended to reply in more detail” to the proposal notice and later stated
to her that he “had not yet had the opportunity to address the proposed removal.”
RAF, Tab 16 at 30-31. Supervisor B was not the proposing or deciding official,
and also was not the individual designated as the contact to schedule the oral
response. IAF, Tab 8 at 18-19, 26. Thus, his statements to her were not
unequivocal requests to make an oral response. Because we find that the
appellant did not invoke his right to make an oral response, we discern no due
process violation.13
The appellant also argued below that the deciding official committed
harmful error by considering uncharged conduct of an alleged lack of candor in
removing him. RAF, Tab 18. The administrative judge denied this harmful error
claim, as further discussed below. ID at 6. On review, the appellant argues that
the agency violated his right to due process. PFR File, Tab 1 at 23-24.
Although the appellant did not raise this argument below, we modify the initial
decision to consider it. See Holton, 123 M.S.P.R. 688, ¶ 28. Nonetheless, we do
not find a basis to reverse the initial decision or the removal.
Procedural due process guarantees are not met if an employee had notice of
only certain charges or portions of the evidence that the deciding official
considered; therefore, it is constitutionally impermissible to allow a deciding
official to receive additional material information that may undermine the
objectivity required to protect the fairness of the process. Stone v. Federal
Deposit Insurance Corporation , 179 F.3d 1368, 1376 (Fed. Cir. 1999). When a
procedural due process violation has occurred because of such ex parte
communications, the violation is not subject to the harmful error test, and the
appellant is entitled to a new constitutionally correct administrative procedure.
Id. at 1377.
Here, the agency’s reference to the uncharged lack of candor offense was
included in its closing statement, submitted by its representative. RAF, Tab 17
at 6. Neither the proposed removal nor the removal decision referenced such a
charge. IAF, Tab 8 at 6-29. Further, although the agency’s representative
suggested the appellant’s lack of candor warranted his removal, the representative
did not state that the deciding official actually considered this alleged lack of
candor. RAF, Tab 17 at 6. There is no other information in the record suggesting
that the proposing or deciding official contemplated any alleged lack of candor in
connection with the removal. Because the only information regarding the alleged
consideration of lack of candor is a statement of the agency’s representative in a
pleading, we find that evidence to support an alleged due process violation is14
lacking. See Hendricks, 69 M.S.P.R. at 168. Accordingly, we determine that the
appellant has not proven the agency considered ex parte information in violation
of his due process rights.
We affirm, as modified, the administrative judge’s determination that
the appellant failed to prove harmful error
An employee is entitled not only to minimum due process but also to the
protections afforded by statute, regulation, and agency procedures.
Stone, 179 F.3d at 1377-78. The Board must reverse an agency’s action if an
appellant establishes that the agency committed a procedural error that likely had
a harmful effect on the outcome of the case before the agency.
Goeke v. Department of Justice , 122 M.S.P.R. 69, ¶ 7 (2015). Harmful error,
however, cannot be presumed; an agency’s error is harmful only when the record
shows 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. Id.
The appellant asserted below, and reargues on review, that the agency
violated its own policy of allowing oral replies. PFR File, Tab 1 at 21-22;
RAF, Tab 16 at 23-25. However, he does not dispute the administrative judge’s
determination that he failed to show that an oral reply would have caused the
agency to issue lesser or no discipline. PFR File, Tab 1 at 21-22. In addition, as
discussed above, we have found that the appellant failed to invoke his right to
make an oral reply. Therefore, we discern no basis to disturb the administrative
judge’s denial of this claim.
The appellant also argued below that the agency’s alleged consideration of
his lack of candor violated an agency directive. RAF, Tab 18. The appellant
re-raises this claim on review. PFR File, Tab 1 at 23-25. The administrative
judge found that the agency violated its directive, but any error was harmless.
ID at 6. We modify this finding. Because we have found no evidence that the
agency considered the appellant’s alleged lack of candor, the administrative
judge’s finding that it did was in error. See 5 C.F.R. § 1201.56(b)(2)(i)(C), (c)(1)15
(reflecting that an appellant bears the burden of proving harmful error by
preponderant evidence).
Finally, the appellant re-raises on review his argument that supervisor B
tainted the removal decision. PFR File, Tab 1 at 18-19; RAF, Tab 16 at 21-23.
According to the appellant, she did so by concealing from the deciding official
that the appellant was incarcerated and that he attempted to contact supervisor B
after January 18, 2017. PFR File, Tab 1 at 18-19; RAF, Tab 16 at 21-23.
The administrative judge considered these arguments, but was not persuaded that
any error would have caused the deciding official to reach a different conclusion.
ID at 5-6. We discern no basis to disturb this finding.6
Contrary to the appellant’s claims on review, the proposal notice made no
assertions about the appellant’s attempts to contact the agency after
January 18, 2017. PFR File, Tab 1 at 17; RAF, Tab 16 at 22-23; IAF, Tab 8
at 18. The record reflects that the deciding official considered the appellant’s
response to the proposed removal. IAF, Tab 8 at 23. In that response, the
appellant referred to his incarceration and listed attempts to reach the agency both
before and after January 18, 2017. IAF, Tab 3 at 38-39. The appellant has failed
to point to any evidence supporting his argument that the deciding official was
unaware of his incarceration and attempts to contact the agency when he decided
to remove the appellant. Therefore, the appellant has not proven he was harmed
by the alleged conduct of supervisor B.
6 We find it unnecessary to reach the appellant’s arguments that the administrative
judge failed to make credibility determinations and consider evidence and argument
regarding whether supervisor B did, in fact, conceal information from the deciding
official or others. PFR File, Tab 1 at 17-19. Because the appellant failed to prove any
such conduct was harmful, the issue of whether the agency committed error is not
material to the outcome of the appeal. See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980) (requiring an initial decision to identify and
resolve all material issues of fact and law).16
The administrative judge properly sustained the penalty of removal.
Because the agency did not prove two of its charges, the administrative
reweighed the relevant penalty factors, and determined that the penalty of
removal was within the tolerable limits of reasonableness for the sustained charge
of AWOL. ID at 6-8; see Leach v. Department of Veterans Affairs , 107 M.S.P.R.
229, ¶¶ 13, 15 (2007) (explaining that when an agency does not prove all its
charges, the Board may mitigate the penalty to the maximum reasonable penalty
so long as the agency did not indicate in either its final decision or before the
Board that it desired a lesser penalty to be imposed for fewer charges).
The appellant disagrees with this conclusion. PFR File, Tab 1 at 24-25.
He generally asserts that the administrative judge failed to consider his “detailed
argument and evidence” regarding the factors relevant to penalty determinations
under Douglas v. Veterans Administration , 5 M.S.P.R. 280, 305-06 (1981).
PFR File, Tab 1 at 24-25.
We discern no basis to grant review. Attempts to incorporate by reference
briefs that were filed below are insufficient to meet the Board’s standards for
granting a petition for review. Hulett v. Department of the Navy , 120 M.S.P.R.
54, ¶ 5 n.2 (2013). A petition for review must contain sufficient specificity for
the Board to ascertain whether there is a serious evidentiary challenge justifying a
complete review of the record. Id.
Even if we were to consider the factors the appellant raised below, we
agree with the administrative judge that removal was a reasonable penalty for
AWOL. ID at 8; RAF, Tab 16 at 13-20. We have sustained the charge as it
concerns 5 weeks of AWOL. The Board has found an AWOL charge sufficient to
support a removal in cases involving similar factors. See Cole, 78 M.S.P.R. at
291-94 (finding removal an appropriate penalty for 16 days of AWOL related to
an appellant’s incarceration for a charge of which he was later convicted, despite
the appellant’s good performance record and length of service); see also Thom v.
Department of the Army , 114 M.S.P.R. 169, ¶¶ 2, 5, 7 (2010) (finding removal17
warranted based on a 1-month period of AWOL despite the mitigating factor of
the appellant’s medical conditions). Thus, we agree with the administrative judge
that the penalty of removal was within the bounds of reasonableness.
Accordingly, we affirm the initial decision as modified above.
NOTICE OF APPEAL RIGHTS7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
7 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.18
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 file19
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, 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 20
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.8 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
8 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, 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. 21
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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.22 | Reavis_Kurt_H_PH-0752-17-0242-I-2_Final_Order.pdf | 2024-08-02 | KURT H. REAVIS v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. PH-0752-17-0242-I-2, August 2, 2024 | PH-0752-17-0242-I-2 | NP |
794 | https://www.mspb.gov/decisions/nonprecedential/Perlick_Deborah_A_NY-1221-19-0052-X-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBORAH A. PERLICK,
Appellant,
v.
DEPARTMENT OF VETERANS
AFFAIRS,
Agency.DOCKET NUMBER
NY-1221-19-0052-X-1
DATE: August 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Robert B. Stulberg , Esquire, New York City, New York, for the appellant.
Mark E Frassinelli , Esquire, Pittsburgh, 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.
FINAL ORDER
This case is before the Board pursuant to a January 12, 2022 compliance
initial decision in which the administrative judge found the agency in partial
noncompliance with the Board’s final decision in the underlying appeal. Perlick
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
v. Department of Veterans Affairs , MSPB Docket No. NY-1221-19-0052-C-1,
Compliance File, Tab 6, Compliance Initial Decision (CID); Perlick v.
Department of Veterans Affairs , MSPB Docket No. NY-1221- 19-0052-W-2,
Appeal File, Tab 18, Initial Decision (ID). For the reasons stated below, we find
the agency in compliance and DISMISS the petition for enforcement.
DISCUSSION OF ARGUMENTS AND EVIDENCE ON COMPLIANCE
On January 12, 2022, the administrative judge issued a compliance initial
decision finding the agency in partial noncompliance with the Board’s December
23, 2020 final decision in the underlying appeal. CID. The administrative judge
held that the agency had failed to pay the appellant all the back pay and interest
to which she was entitled; had not adjusted the appellant’s benefits with
appropriate credits and deductions in accordance with the Office of Personnel
Management’s regulations; and had not informed the appellant in writing of all
the actions the agency had taken to comply with the Board’s order and the date on
which the agency believed it had fully complied. Id. at 3-4. Specifically, the
administrative judge found that while the agency had paid the appellant
$48,716.66, representing back pay for the period between November 3, 2017, and
June 6, 2018, it still owed the appellant back pay from June 7, 2018, through
March 31, 2020. See id. at 2 n.2, 3-5; ID at 16.
The administrative judge ordered the agency to “[p]ay appellant . . . for the
appropriate amount of back pay, with interest, through March 31, 2020, minus . . .
[]$48,716.66[,] and to adjust her benefits with appropriate credits and deductions
(among these a credit of $11,359.44 in Thrift Savings Plan deductions and
$1,668.72 in health insurance for the back pay period).” Id. at 5. The
administrative judge further ordered the agency to “[i]nform appellant in writing
of all actions taken to comply with the Board’s Order and the date on which it
believes it has fully complied.” Id. 2
In the compliance initial decision, the administrative judge informed the
agency that, if it decided to take the compliance actions required by the decision,
it must submit to the Office of the Clerk of the Board, within the time limit for
filing a petition for review under 5 C.F.R. § 1201.114(e), a statement that it had
taken the actions identified in the compliance initial decision, along with
evidence establishing that it had taken those actions. CID at 5-6; 5 C.F.R.
§ 1201.183(a)(6)(i). She also informed the parties of their option to request
Board review of the compliance initial decision by filing a petition for review by
February 16, 2022, the date on which the findings of noncompliance would
become final unless a petition for review was filed. CID at 6-7; see 5 C.F.R.
§§ 1201.114(e), 1201.183(a)(6)(ii), 1201.183(b). Neither party petitioned for
review. Accordingly, pursuant to 5 C.F.R. § 1201.183(b)-(c), the administrative
judge’s findings of noncompliance became final, and the appellant’s petition for
enforcement was referred to the Board for a final decision on issues of
compliance.
On February 17, 2022, the Office of the Clerk of the Board issued an
acknowledgment order in the instant proceeding advising the parties that the
petition for enforcement had been referred to the Board for a final decision and
ordering the agency to submit evidence of compliance within 15 calendar days.
Perlick v. Department of Veterans Affairs , MSPB Docket No. NY-1221-19-0052-
X-1, Compliance Referral File (CRF), Tab 1 at 3. On March 2, 2022, the agency
filed its response, asserting that it had taken certain personnel actions to
effectuate the back pay payment to the appellant, although the appellant had not
yet received the back pay, and submitting documentation of those personnel
actions and a remedy ticket for the Defense Finance and Accounting Service
(DFAS) requesting DFAS process the back pay payment. CRF, Tab 2. The
agency argued that it had fully complied with the Board’s Order. Id. at 4-5.
On March 22, 2022, the appellant responded to the agency’s statement of
compliance and alleged that she had not received the payments she was owed,3
other than a check for $1,668.72, to compensate her for improper health insurance
deductions. CRF, Tab 3 at 2. The appellant further noted that the agency still
had not provided a detailed narrative explaining how its evidence of compliance
satisfied the requirements of the compliance initial decision. Id. at 15-16.
On June 21, 2022, the Clerk of the Board issued an order directing the
agency to respond to the appellant’s challenges to its compliance submission.
CRF, Tab 4 at 5. The Clerk further directed the agency to “identify, by name and
address, the agency official charged with complying with the Board’s order and
provide evidence that it has informed such official in writing of the potential
sanction for noncompliance . . . even if the agency asserts that it has fully
complied with the Board’s order.” Id.
On June 30, 2022, the agency responded to the June 21, 2022 Order. In its
response, the agency stated that on May 9, 2022, the agency received notice of
certified delivery to the appellant of a check in the amount of $174,302.28. CRF,
Tab 5 at 5, 81-82. The agency also re-submitted the same summary of personnel
actions, SF-50s, and DFAS remedy ticket it attached to its March 2022 filing.
See id. at 9-40.
On July 20, 2022, the appellant submitted a reply, noting that she had
received the certified check in the amount of $174,302.28, but contending that the
agency still had not provided her with a detailed, clear explanation of the
calculations of the amounts due. CRF, Tab 6 at 7, 9-10. Instead, the agency had
provided the appellant Excel spreadsheets from DFAS that appeared to state the
amounts due to her, but without an explanation of the codes and abbreviations
used in the spreadsheets. Id. at 9-10. The appellant further argued that the
agency had not carried its burden of proving compliance due to its failure to
explain its calculations and had failed to identify the agency official charged with
compliance. Id. at 10. The appellant requested an award of monetary sanctions
and leave to file a claim for attorney fees and costs. Id. at 11.4
On September 27, 2022, the Board issued an order finding the agency
noncompliant and directing it to:
(1) clearly set forth the gross amount due the appellant and show
how that amount was determined; (2) clearly set forth the amount
and reason for all deductions, reductions, and offsets from the gross
amount due the appellant; (3) clearly set forth the source and amount
of all checks or electronic payments already received by the
appellant and provide evidence that such checks or electronic
payments were received; and (4) clearly set forth the amount of
interest due the appellant and how that amount was calculated. The
agency must also clearly set forth its calculations relating to the
appellant’s sick and annual leave balances, her Thrift Savings Plan
account (including both the appellant’s and the agency’s
contributions), and any other benefits of employment the appellant
should have received but for the agency’s unwarranted personnel
action.
CRF, Tab 7 at 8. The Board also directed the agency to provide “a narrative
explanation of its calculations . . . [and] an explanation of all codes and
abbreviations used.” Id.
On October 17, 2022, the agency filed its response to the Board’s order,
submitting several attachments, including a statement from E.J., a supervisor at
DFAS, describing the back pay calculations; a “detailed narrative of retro back
pay” from A.M., a payroll supervisor from the agency, which explained the
contents of the back pay settlement spreadsheets, including annual leave lump
sum calculations; a DFAS Back Pay Audit, which included interest calculations;
summaries of payment; and an October 17, 2022 email from the agency to
appellant’s counsel detailing the actions it had taken to comply. CRF, Tab 9, at
8-78.
The appellant replied on October 27, 2022, arguing that the agency was
still not in compliance, asserting that the agency had failed to adequately explain
the appellant’s sick and annual leave balances and its interest calculations, and
had not provided adequate evidence that its back pay payments were received.
CRF, Tab 10 at 4-5. 5
On January 31, 2024, the agency submitted additional evidence of
compliance, which consisted of tables calculating the appellant’s sick and annual
leave balances. CRF, Tab 11 at 4-13.
On January 31, 2024, the appellant filed a response noting that the agency’s
submission was unsworn, that the 2020 annual leave calculation in the agency’s
January 31, 2024 submission was less by five hours than the original leave
calculation in its October 17, 2022 submission, and that the agency did not
address the appellant’s previous contentions in its October 27, 2022 response.
CRF, Tab 13 at 10.
ANALYSIS
The agency bears the burden of proving that it has complied with a Board
order. Mercado v. Office of Personnel Management , 115 M.S.P.R. 65, ¶ 4 (2010).
The agency is required to produce relevant, material, and credible evidence of
compliance in the form of documentation or affidavits. Spates v. U.S. Postal
Service, 70 M.S.P.R. 438, 443 (1996). The appellant may rebut the agency's
evidence of compliance by making “specific, nonconclusory, and supported
assertions of continued noncompliance.” Brown v. Office of Personnel
Management, 113 M.S.P.R. 325, ¶ 5 (2010).
In this case, the compliance initial decision ordered the agency to pay the
appellant the correct amount of back pay and interest on the back pay, and to
adjust her benefits with appropriate credits and deductions. CID at 5. In its
October 17, 2022 submission, the agency submitted a DFAS Audit, which
consisted of spreadsheets documenting the amount of back pay owed to the
appellant for each year from 2017-2020; the DFAS Summary of Payment, which
set forth the amount of back pay and deductions in each back pay installments;
Back Pay Computation Summary Reports for two back pay installments, which
detailed the interest rate and total accrued interest for each pay period; a
spreadsheet setting out deductions per pay period; and narrative explanations of6
the DFAS Back Pay Audit from E.J., of DFAS, and from A.M., the Payroll
Supervisor at the James J. Peter Bronx VA Medical Center. CRF, Tab 9.
In her October 27, 2022 response, the appellant argued that the agency had
not:
provided information concerning how it derived the inputs used to
generate those [interest calculator] tables, including the following
inputs: (i) the applicable interest rates; (ii) the number of days in
each pay period; (iii) the number of days between the end of a pay
period and when paychecks are issued; (iv) when the first day of the
pay period was for each period during which back pay was payable;
and (v) the day on which back pay ceased accruing interest.
CRF, Tab 10 at 5. However, the number of days in a pay period, the number of
days between the end of the pay period and when paychecks are issued, and the
date of the first day of each pay period are standard numbers, and, in addition, the
information in the spreadsheets provided by the agency is consistent with the
information regarding pay periods provided in the Back Pay Computation
Summary Report. CRF, Tab 9 at 18-42. With respect to the applicable interest
rates, the Back Pay Act provides for interest to be paid at the overpayment rate in
the Internal Revenue Code. 5 U.S.C. § 5596(b)(2)(B); 26 U.S.C. § 6621(a)(1).2
The Office of Personnel Management publishes these rates on its website. A
comparison of the rates used by the agency and those on OPM’s website
demonstrates that the interest rates used were correct. Moreover, interest accrual
ends at a time selected by the agency that is no more than 30 days before the date
of the back pay interest payment. 5 C.F.R. § 550.806(a)(2). In each back pay
installment, the agency correctly ended the interest rate accrual less than 30 days
before the date of the payments. CRF, Tab 9 at 21, 22, 32. Accordingly, we find
the agency in compliance on this point.
The appellant also contended that the VA did not satisfactorily provide
evidence regarding the source and amount of checks received by the appellant or
2 The overpayment rate consists of the Federal short-term rate plus 3 percentage points.
26 U.S.C. § 6621(a)(1). 7
demonstrating that she received any payments. CRF, Tab 10 at 5. However, the
appellant conceded that she had received payments from DFAS of the amounts set
forth in the agency’s submissions. Id. at 5, n.1. Moreover, agency counsel
provided a sworn declaration stating that the agency had received a certification
from UPS that the $174,302.28 installment of back pay and interest had been
delivered to the appellant’s address. CRF, Tab 5 at 81. Accordingly, we find the
agency in compliance regarding this issue.
The appellant argued in her most recent filing that the agency did not
sufficiently explain the calculations of her leave, and that the agency’s
calculations of her annual leave in the last two filings were inconsistent. CRF,
Tab 13 at 9-10. The agency, however, provided leave audits, which broke down
appellant’s leave into hours accrued per pay period for each year. CRF, Tab 11 at
2-13. Moreover, according to the agency’s October 17, 2022 filing, the appellant
accrued 41 hours of annual leave in 2020. CRF, Tab 9 at 44. In the agency’s
January 31, 2024 filing, the 2020 Annual Leave Table states that the appellant
accrued 35 hours of leave in 2020. CRF, Tab 11 at 13. We note that the
appellant was paid for 41 hours of annual leave in 2020, CRF, Tab 9 at 44, and if
the agency erred in its 2020 annual leave calculation, its error favored the
appellant by $311.25. As any error by the agency is in the appellant’s favor, we
find the agency in compliance on this point.
Finally, regarding the appellant’s request for sanctions, we deny the
request. The Board’s sanction authority is limited to the sanctions necessary to
obtain compliance with a Board order. Mercado v. Office of Personnel
Management, 115 M.S.P.R. 65. ¶ 8 (2010) (stating that the Board’s ability to
award sanctions is a means to enforce compliance, and once compliance has been
demonstrated, it would be inappropriate to impose sanctions). Because the
agency has complied with the Board’s orders, we are without authority to impose
sanctions in this matter. 8
ORDER
For the reasons discussed above, we find the agency in compliance and
DISMISS the petition for enforcement. The appellant’s motion for leave to file
attorney’s fees is denied, but the appellant may now file a motion for attorney’s
fees and costs as set forth below and in accordance with 5 C.F.R. § 1208.203.
This is the final decision of the Merit Systems Protection Board in this
compliance proceeding. Title 5 of the Code of Federal Regulations, section
1201.183(c)(1) (5 C.F.R. § 1201.183(c)(1)).
NOTICE TO THE APPELLANT REGARDING YOUR RIGHT TO
REQUEST ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set out at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
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
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.9
jurisdiction. If you wish to seek review of this 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. 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.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. 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.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 | Perlick_Deborah_A_NY-1221-19-0052-X-1_Final_Order.pdf | 2024-08-02 | DEBORAH A. PERLICK v. DEPARTMENT OF VETERANS AFFAIRS, MSPB Docket No. NY-1221-19-0052-X-1, August 2, 2024 | NY-1221-19-0052-X-1 | NP |
795 | https://www.mspb.gov/decisions/nonprecedential/Cloney_AlecSF-315H-23-0302-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALEC CLONEY,
Appellant,
v.
DEPARTMENT OF THE TREASURY,
Agency.DOCKET NUMBER
SF-315H-23-0302-I-1
DATE: August 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alec Cloney , Clovis, California, pro se.
Yifan Everett , San Francisco, 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 her probationary termination appeal for lack of jurisdiction. On
petition for review, the appellant argues the merits of her probationary
termination. Petition for Review (PFR) File, Tab 1 at 4-5. 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).
¶2The appellant provides a document for the Board’s consideration on review.
PFR File, Tab 1 at 6. The Board will not grant a petition for review based on new
evidence absent a showing that it is of sufficient weight to warrant an outcome
different from that of the initial decision. Russo v. Veterans Administration ,
3 M.S.P.R. 345, 349 (1980); 5 C.F.R. § 1201.115(d). The appellant’s document
submitted for the first time on review is a doctor’s note covering the dates that
the agency charged the appellant as Absent Without Leave. PFR File, Tab 6.
However, it is immaterial to the issue of whether the Board has jurisdiction over
this appeal. See 5 C.F.R. § 1201.115(d) (explaining that the Board may grant a
petition for review if it contains new and material evidence). We therefore
decline to consider it further.
¶3Accordingly, we affirm the initial decision.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 | Cloney_AlecSF-315H-23-0302-I-1_Final_Order.pdf | 2024-08-02 | ALEC CLONEY v. DEPARTMENT OF THE TREASURY, MSPB Docket No. SF-315H-23-0302-I-1, August 2, 2024 | SF-315H-23-0302-I-1 | NP |
796 | https://www.mspb.gov/decisions/nonprecedential/Giardina__Patricia__E_AT-1221-20-0813-W-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
PATRICIA ELLEN GIARDINA,
Appellant,
v.
DEPARTMENT OF THE NAVY,
Agency.DOCKET NUMBER
AT-1221-20-0813-W-1
DATE: August 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Georgia A. Lawrence , Esquire, and Shaun Southworth , Esquire, Atlanta,
Georgia, for the appellant.
David Kendrick , Esquire, Panama City, 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 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 failed to exhaust her administrative remedies before the Office of
Special Counsel (OSC) or nonfrivolously allege that her disclosures were
protected. Petition for Review (PFR) File, Tab 1 at 5-6. She also argues that she
nonfrivolously alleged that her disclosures were a contributing factor in the
personnel actions taken against her. Id. at 7-8. Generally, we grant petitions
such as this one only in the following circumstances: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to find that the appellant failed to nonfrivolously allege that she
engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A), we AFFIRM the
initial decision.
The Board may consider only those disclosures of information and
personnel actions that the appellant raised before OSC. Mason v. Department of
Homeland Security , 116 M.S.P.R. 135, ¶ 8 (2011). The administrative judge
properly found that the appellant failed to exhaust her administrative remedies
regarding a 2012 equal employment opportunity (EEO) complaint, May 2019
report to an agency official regarding a hiring selection, and July 2019 email to
her supervisor objecting to workplace harassment. Initial Appeal File, Tab 7,
Initial Decision (ID) at 5-6. Therefore, we need not address on review the
appellant’s arguments that these disclosures were protected under 5 U.S.C.2
§ 2302(b)(8). PFR File, Tab 1 at 5-6; see Clarke v. Department of Veterans
Affairs, 121 M.S.P.R. 154, ¶ 16 (2014).
The appellant has not challenged on review, and we see no reason to
disturb, the administrative judge’s findings that she has not nonfrivolously
alleged that the contents of her 2014 and 2019 EEO complaints, concerning
claims of discrimination and reprisal for prior EEO activity, constituted protected
disclosures of the types of wrongdoing set forth in section 2302(b)(8). ID at 6;
PFR File, Tab 1 at 4-8. After the issuance of the initial decision, the Board
clarified that EEO activity is considered protected activity under 5 U.S.C.
§ 2302(b)(9)(A)(i) only when it seeks to remedy whistleblower reprisal under
5 U.S.C. § 2302(b)(8). Edwards v. Department of Labor , 2022 MSPB 9,
¶¶ 24-25; Mudd v. Department of Veterans Affairs , 120 M.S.P.R. 365, ¶¶ 6-7
(2013) (explaining that filing a grievance, which does not itself seek to remedy
whistleblower reprisal, is not protected activity under the Whistleblower
Protection Enhancement Act of 2012). We clarify that the appellant has not
nonfrivolously alleged that either her 2014 or 2019 EEO complaints concerned
remedying a violation of 5 U.S.C. § 2302(b)(8), and, therefore, the Board lacks
jurisdiction over these allegations as protected activity under section 2302(b)(9)
(A). See Edwards, 2022 MSPB 9, ¶¶ 24-25; see also 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)).
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
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
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although 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 particular4
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 . 5
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative 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 of6
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. 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 | Giardina__Patricia__E_AT-1221-20-0813-W-1_Final_Order.pdf | 2024-08-02 | PATRICIA ELLEN GIARDINA v. DEPARTMENT OF THE NAVY, MSPB Docket No. AT-1221-20-0813-W-1, August 2, 2024 | AT-1221-20-0813-W-1 | NP |
797 | https://www.mspb.gov/decisions/nonprecedential/Harris_Teretha_B_AT-0752-16-0241-I-5_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TERETHA B. HARRIS,
Appellant,
v.
DEPARTMENT OF LABOR,
Agency.DOCKET NUMBER
AT-0752-16-0241-I-5
DATE: August 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Christopher Vaughn , Esquire, Decatur, Georgia, for the appellant.
Jean Abreu , Esquire, 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.
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. Except as expressly MODIFIED to
address the appellant’s affirmative defenses under the applicable statutes—i.e.,
the Age Discrimination in Employment Act of 1967 (ADEA), Title VII of the
Civil Rights Act of 1964 (Title VII), and the Rehabilitation Act of 1973—we
AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant was not prejudiced by the administrative judge’s decision not to
address the charges of excessive absences and absence without leave (AWOL).
The appellant argues on review that the administrative judge erred in
declining to address the charges of excessive absences and AWOL. Petition for
Review (PFR) File, Tab 1 at 9. However, assuming without deciding that the
administrative judge erred on this point, an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision. Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282
(1984). We discern no error in the administrative judge’s finding that the agency
proved the charge of medical inability to perform, and that the sustained charge
warrants removal.2 Hence, the administrative judge’s failure to address the
2 To the extent the appellant disagrees with the administrative judge’s findings on these
issues, her mere disagreement with his findings provides no basis 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 a2
agency’s alternative grounds for removal could not have worked to the
appellant’s disadvantage. See Katchmeric v. Office of Personnel Management ,
33 M.S.P.R. 118, 122 (1987) (finding that the appellant was not prejudiced by the
administrative judge’s failure to address one of the two charges underlying a
suitability determination when the remaining charge was sufficient to establish
that the appellant was unsuitable for Federal employment). Moreover, the agency
does not argue on review that the administrative judge erred in declining to
address the charges of excessive absences and AWOL. PFR File, Tab 6 at 9.
Because we discern no error in the administrative judge’s finding that the
appellant’s medical inability to perform is a sufficient basis for her removal, it is
unnecessary to address the remaining charges. See Buelna v. Department of
Homeland Security , 121 M.S.P.R. 262, ¶¶ 1-2, 5, 11, 36 (2014) (sustaining the
appellant’s indefinite suspension based on the suspension of his security
clearance when neither the administrative judge nor the full Board addressed the
merits of the agency’s remaining charge, and the agency did not object to the
omission).
The appellant did not establish her affirmative defenses.
The appellant’s affirmative defenses fall within the scope of three distinct
antidiscrimination statutes: the ADEA (retaliation); Title VII (retaliation); and the
Rehabilitation Act (failure to accommodate, disparate treatment, and retaliation).
We address each statute in turn.
ADEA: retaliation
To prove a claim of retaliation for activity protected under the ADEA, an
appellant must show that her protected activity was a motivating factor in the
agency’s action or decision.3 Nita H. v. Department of the Interior , EEOC
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).
3 Although the administrative judge failed to inform the appellant that her EEO
retaliation claims were covered in part by the ADEA, he did notify the appellant of
what she needed to do to establish that her EEO activity was a motivating factor in her3
Petition No. 0320110050, 2014 WL 3788011, at *10 n.6 (July 16, 2014). While
the appellant’s formal equal employment opportunity (EEO) complaints included
claims of age discrimination and are thus covered under 29 U.S.C. § 633a(a), she
has not adduced evidence to support a conclusion that these activities were a
motivating factor in the agency’s decision to remove her. The appellant instead
points to the fact that the agency proposed her removal on October 21, 2015, the
day after she complained to the Atlanta Police that she was being “stalked,
harassed, retaliated and watched by management, co-workers, non-coworkers and
even building management.” PFR File, Tab 1 at 18. However, the appellant has
not specifically alleged that the October 20, 2015 police complaint, or her
complaint to management earlier that month, involved claims that the agency
violated the ADEA or any other antidiscrimination statute. Accordingly, we
conclude that the appellant has not established a claim of unlawful retaliation
under the ADEA.
Title VII: retaliation
The substantive standard for Title VII claims in the Federal sector is set
forth in 42 U.S.C. § 2000e-16, which provides that personnel actions by Federal
agencies “shall be made free from any discrimination based on race, color,
religion, sex, or national origin.” To prove a claim of retaliation under this
section, an appellant must show that her protected activity was a motivating
factor in her removal. Pridgen v. Office of Management and Budget , 2022 MSPB
31, ¶ 30.
As with the appellant’s ADEA claims, we again conclude that the appellant
did not show that protected Title VII activity was a motivating factor in her
removal. The appellant’s formal EEO complaints included claims of
discrimination and retaliation in violation of Title VII; however, as previously
removal. Harris v. Department of Labor , MSPB Docket No. AT-0752-16-0241-I-5,
Appeal File, Tab 6 at 14-16. Hence, the appellant was not prejudiced by the
administrative judge’s failure to specifically address the ADEA.4
stated, she has not provided evidence that these complaints were a motivating
factor in her removal. The appellant has also not specifically alleged that her
October 2015 complaints to management and the Atlanta Police involved alleged
Title VII violations. Accordingly, we agree with the administrative judge’s
ultimate finding that the appellant did not establish her affirmative defense of
retaliation in violation of 42 U.S.C. § 2000e-16.
Rehabilitation Act: failure to accommodate
Under the Rehabilitation Act, an agency is required to provide reasonable
accommodation to a qualified individual with an actual disability or a record of a
disability. See 29 C.F.R. § 1630.2(o)(4). To prove disability discrimination
based on failure to accommodate, the employee must show that (1) she is an
individual with an actual disability4 or a record of a disability, as defined by
29 C.F.R. § 1630.2(g); (2) she is a qualified5 individual with a disability, as
defined by 29 C.F.R. § 1630.2(m); and (3) the agency failed to provide a
reasonable accommodation. Miller v. Department of the Army , 121 M.S.P.R. 189,
¶ 13 (2014) (citing Emory v. Environmental Protection Agency , EEOC Appeal
No. 0120112078, 2013 WL 3435860, at *9 (June 27, 2013)).
We agree with administrative judge that the appellant’s reasonable
accommodation claim is barred by collateral estoppel. Under the doctrine of
collateral estoppel, once an adjudicatory body has decided a factual or legal issue
necessary to its judgment, that decision may preclude relitigation of the issue in a
case concerning a different cause of action involving a party to the initial case.
Allen v. McCurry , 449 U.S. 90, 94 (1980). Collateral estoppel is appropriate
4 We assume without deciding that the appellant has an actual disability, i.e., a physical
or mental impairment that substantially limits one or more major life activities. See
29 C.F.R. § 1630.2(g).
5 With exceptions not applicable here, the term “qualified” means that the individual
satisfies the requisite skill, experience, education and other job-related requirements of
the employment position the individual holds or desires and, with or without reasonable
accommodation, can perform the essential functions of such position. 29 C.F.R.
§ 1630.2(m).5
when the following conditions are met: (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 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 fully represented in that 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).
Here, the dispositive issue of whether the agency denied the appellant
reasonable accommodation has already been litigated in district court.6 In
granting the defendant’s motion for summary judgment with respect to the
appellant’s Rehabilitation Act claim, the magistrate judge found, and the district
court ultimately agreed, that the agency provided reasonable accommodation by
offering her reassignment to the GS -9 Administrative Specialist position, which
the appellant declined, and that the appellant had “not identified any other
reasonable accommodation that would have allowed her to perform the essential
functions of her job.”7 Harris v. Department of Labor , MSPB Docket No. AT-
0752-16-0241-I-5, Appeal File, Tab 9 at 150. That finding was necessary to the
resulting judgment, which was made final by the district court, and the appellant
had a full and fair opportunity to litigate the issue. Hence, the elements of
collateral estoppel are satisfied, and we affirm the administrative judge’s finding
that the appellant failed to establish that she was denied reasonable
accommodation.
6 With respect to all of the appellant’s remaining claims, whether under the ADEA,
Title VII, or the Rehabilitation Act, we agree with the appellant that the doctrine of
collateral estoppel is inapplicable because the appellant’s removal was not at issue in
the district court proceeding. See Hau, 123 M.S.P.R. 620, ¶ 13.
7 While the district court did not specifically address the October 1, 2015 letter from the
appellant’s licensed professional counselor, the counselor’s suggested accommodation
of full-time telework was identical to the accommodation the appellant had previously
requested. Harris v. Department of Labor , MSPB Docket No. AT-0752-16-0241-I-1,
Initial Appeal File, Tab 7 at 192.6
Rehabilitation Act: disparate treatment
We next consider the appellant’s claim of disability discrimination on a
theory of disparate treatment. To prove a disparate treatment disability
discrimination claim, an appellant must show that her disability was a motivating
factor in the action on appeal. Pridgen, 2022 MSPB 31, ¶ 40.
Although the administrative judge did not have the benefit of Pridgen, we
find that he reached the correct conclusion in finding that the appellant did not
establish her claim of disparate treatment based on her status as an individual
with a disability. In support of her claim of disparate treatment, the appellant
relies entirely on her allegation that two employees who were not disabled were
permitted to telework, while the appellant was not. PFR File, Tab 1 at 16.
However, as the administrative judge noted, the record contains no evidence that
the two employees in question were allowed to telework on a permanent, full -time
basis, as the appellant requested. In the absence of such evidence, we conclude
that the appellant did not show that her status as an individual with a disability
was a motivating factor in the agency’s decision to remove her.
Rehabilitation Act: retaliation
To prove a claim of retaliation under the Rehabilitation Act, the appellant
must show that retaliation was a but-for cause of the agency’s action or decision.
Pridgen, 2022 MSPB 31, ¶¶ 46-47. In other words, to establish a violation of
42 U.S.C. § 12203(a), the appellant must show not merely that her protected
activity was a motivating factor in the contested action, but that the agency would
not have taken the action in the absence of her protected activity. Although the
administrative judge did not have the benefit of Pridgen, and did not apply the
but-for causation standard to this claim, this does not affect the outcome.
Because the appellant did not prove motivating factor causation, she necessarily
did not prove but-for causation. See Haas v. Department of Homeland Security ,
2022 MSPB 36, ¶ 32. Similarly, as discussed above, the appellant has not shown
that her EEO complaints were a motivating factor in her removal, or that her7
October 2015 complaints to agency management and the Atlanta Police contained
allegations that the agency violated antidiscrimination statutes.
NOTICE OF APPEAL RIGHTS8
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).
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.8
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the 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 on9
race, color, religion, sex, 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) or10
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (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
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
9 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 11
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.12 | Harris_Teretha_B_AT-0752-16-0241-I-5_Final_Order.pdf | 2024-08-02 | TERETHA B. HARRIS v. DEPARTMENT OF LABOR, MSPB Docket No. AT-0752-16-0241-I-5, August 2, 2024 | AT-0752-16-0241-I-5 | NP |
798 | https://www.mspb.gov/decisions/nonprecedential/Ruiz_LuisDA-0752-20-0059-I-1_Final_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS RUIZ,
Appellant,
v.
DEPARTMENT OF HOMELAND
SECURITY,
Agency.DOCKET NUMBER
DA-0752-20-0059-I-1
DATE: August 2, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Alan V. Edmunds , Esquire, and Brittany D. Honeycutt , Esquire, Ponte
Vedra Beach, Florida, for the appellant.
Maria G. DeFord , Edinburg, 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
sustained his removal based on charges of conduct unbecoming and lack of
candor. On petition for review, the appellant argues that his wife falsely accused
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
him of assaulting her and notes that she later recanted the statements identified in
the police report, resulting in the criminal charges against him subsequently being
dropped, and so the administrative judge erred in concluding that the agency met
its burden of proving the conduct unbecoming charge. He also argues that the
agency acknowledged that he had not engaged in the alleged misconduct, and so
the administrative judge erred by concluding that the agency met its burden of
proving the lack of candor charge. 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).
In concluding that the agency met its burden of proving the conduct
unbecoming charge, the administrative judge summarized the testimony provided
by the appellant and his wife at the hearing denying that the appellant physically
assaulted his wife, and instead asserting that she was the aggressor during the
incident in question. Initial Appeal File (IAF), Tab 34, Initial Decision (ID)
at 10-11, 12-13. She also summarized the hearing testimony of the responding
police officer who interviewed the appellant’s wife on the day of the incident and
took her statement. ID at 11-12. After considering the relevant testimony and
corresponding record evidence, including the police report and signed statement2
by the appellant’s wife taken on the day of the incident, photographs of the scene
at the appellant’s house and the appellant’s wife’s injuries, and other relevant
testimonial and record evidence, the administrative judge concluded that the
version of events described by the appellant and his wife at the hearing was not
credible, and the version of events reflected on the police report was the most
plausible and credible version of the events that occurred that day.2 ID at 13-16
(citing Hillen v. Department of the Army , 35 M.S.P.R. 453, 458 (1987);
Borninkhof v. Department of Justice , 5 M.S.P.R. 77, 83-87 (1981)).
Consequently, the administrative judge concluded that the agency met its burden
of proving the charge. ID at 16.
On review, the appellant merely restates his argument that he was falsely
accused of the assault and cites the fact that his wife later recanted her allegations
and that the criminal charges were dropped as evidence in support of his claim.
Petition for Review (PFR) File, Tab 2 at 4-5. The Board generally must give
deference to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing, and may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Haebe v. Department of Justice ,
288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant’s arguments on review
2 Although the administrative judge identified the wife’s later July 17, 2019 written
statement denying the assault as a “sworn” statement, a review of the record reflects
that the statement was signed by the appellant’s wife and witnessed by a notary public,
but does not reflect that the statement was sworn or attested to. IAF, Tab 8 at 41; ID
at 8. Because we ultimately find no error in the administrative judge’s credibility
findings and her conclusion that the written statement is not credible, any error in this
misstatement was harmless and did not affect the outcome of the decision. ID at 13; see
Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282 (1984 ) (finding that an
adjudicatory error that was not prejudicial to a party’s substantive rights provided no
basis for reversing an initial decision); see also Adamsen v. Department of Agriculture ,
116 M.S.P.R. 331, ¶¶ 15-17 (2011 ) (noting that unsworn, unsupported statements have
little probative value); Scott v. Department of Justice , 69 M.S.P.R. 211, 228 (1995 )
(holding that, while an unsworn statement is admissible evidence, the fact that it is
unsworn may detract from its probative value), aff’d, 99 F.3d 1160 (Fed. Cir. 1996)
(Table).3
constitute mere disagreement with the administrative judge’s well-reasoned
findings and do not establish that she erred in sustaining the conduct unbecoming
charge. See Yang v. U.S. Postal Service , 115 M.S.P.R. 112, ¶ 12 (2010) (stating
that arguments that constitute mere disagreement with the initial decision do not
provide a basis to grant the petition for review); see also Broughton v.
Department of Health and Human Services , 33 M.S.P.R. 357, 359 (1987) (finding
no reason to disturb the administrative judge’s conclusions when the initial
decision reflected that the administrative judge considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions).
Accordingly, we find no error in the administrative judge’s finding that the
agency met its burden of proving the conduct unbecoming charge and see no
reason to disturb this finding on review.
With regard to the lack of candor charge, the administrative judge
concluded that, because the agency met its burden of proving that the appellant
had, in fact, assaulted his wife on August 31, 2017, thus proving the misconduct
described in the conduct unbecoming charge, the agency also proved that the
appellant lacked candor when he explicitly denied hitting or striking his wife in
his interview with the Office of Professional Responsibility (OPR). IAF, Tab 8
at 403-04; ID at 17. On review, the appellant restates his claim that his wife’s
allegations were false and that he gave a truthful account to OPR investigators
during his interview. PFR File, Tab 2 at 4-5. The appellant also alleges that the
agency itself “admitted that [it] believed the [a]ppellant that the charges that were
against him were unfair and that he did not make any false statements about the
events.” Id. at 4.
Although the appellant does not directly identify the source for his bare
assertion that the agency “admitted” that it believed the appellant, it appears that
this is a reference to an exchange between the appellant and OPR investigators
during which the investigators and the appellant discussed the appellant’s claim
that his wife was lying about the assault. IAF, Tab 8 at 367-74. If so, the4
appellant mischaracterizes this exchange. During this exchange, the investigators
presumed, for the sake of argument, that the appellant’s claim that his wife “is a
liar” was true, and observed that, given that she had purportedly already lied
about one assault, there would be nothing to stop her from doing so again. See id.
at 367 (“So, what you’re saying is your wife then is a perpetual liar? A fabricator
of a whole entire story that got you arrested, charged, suspended without pay.”);
id. at 368 (“What are they supposed to say when you’re married to somebody who
has lied to the police, has made up a story like you said . . . .”); id. at 372 (“So,
when we asked you if she’s a liar, I mean we can’t sugar coat this for you because
at the end of the day my question to you is, how are we going to make sure this
doesn’t happen again? She’s lied ten times.”); id. (“How are you going to
guarantee to us, that she’s not going to lie again and that you’re not going to get
arrested again? That at the end of the day, that’s why we’re here.”).
When viewed in the proper context, it is clear that nothing in this exchange
indicates that the OPR investigators were suggesting that they actually agreed
with the appellant’s assertion that his wife had lied about the assault, and instead
were questioning the appellant about the implications of the fact that his wife had
gone to the police and reported an assault, resulting in the appellant’s arrest, and
the effect that fact had on the appellant’s position as a Customs and Border
Protection (CBP) Officer. See id. at 370 (“We’re here to protect the
government.”); id. (“Okay and you understand CBP employees cannot, should
not, ever get arrested.”). Accordingly, there is also no merit to the appellant’s
claim that agency officials acknowledged that he did not lack candor in his
statements to OPR officials and that the administrative judge erred in sustaining
the lack of candor charge. Based on the foregoing, the agency proved that the
appellant engaged in the conduct described in the conduct unbecoming charge,
and that the appellant lacked candor when he falsely denied assaulting his wife to
OPR investigators. Consequently, we also agree with the administrative judge
that the agency proved the charge of lack of candor. ID at 17; see Crosby v. U.S.5
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 reached well-reasoned conclusions).
NOTICE OF APPEAL RIGHTS3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
3 Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.6
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision —including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 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 on7
race, color, religion, sex, 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) or8
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
4 The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510. 9
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
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 | Ruiz_LuisDA-0752-20-0059-I-1_Final_Order.pdf | 2024-08-02 | LUIS RUIZ v. DEPARTMENT OF HOMELAND SECURITY, MSPB Docket No. DA-0752-20-0059-I-1, August 2, 2024 | DA-0752-20-0059-I-1 | NP |
799 | https://www.mspb.gov/decisions/nonprecedential/Hereford_Melissa_M_AT-0432-19-0677-I-1_Remand_Order.pdf | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELISSA M. HEREFORD,
Appellant,
v.
DEPARTMENT OF DEFENSE,
Agency.DOCKET NUMBER
AT-0432-19-0677-I-1
DATE: August 2, 2024
THIS ORDER IS NONPRECEDENTIAL1
Melissa M. Hereford , Marietta, Georgia, pro se.
David R. Daniels , Esquire, and Kelly Wilkinson , Alexandria, Virginia, 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 her removal under 5 U.S.C. chapter 43 . For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and REMAND the case to the Atlanta Regional Office for further
1 A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite 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).
adjudication consistent with Santos v. National Aeronautics and Space
Administration, 990 F.3d 1355 (Fed. Cir. 2021).
BACKGROUND
The appellant served as a GS-13 Human Resources Specialist whose major
duties involved investigating and writing reports regarding equal employment
opportunity (EEO) complaints filed by agency employees. Initial Appeal File
(IAF), Tab 5 at 12, Tab 17 at 8. In this position, her performance plan was
comprised of the following three critical elements: (1) Technical Competency,
(2) Contribution to Mission, and (3) Customer Care/Teamwork. IAF, Tab 5 at 23-
26. The appellant’s performance in each critical element was rated on a three-
tiered scale with possible ratings of outstanding, fully successful, or
unacceptable. Id.
The appellant’s first-level supervisor placed her on a 120-day Performance
Improvement Plan (PIP) beginning January 30, 2018, based on her determination
that the appellant had failed to maintain a fully successful level of performance
with respect to Contribution to Mission (Objective 2) and Customer
Care/Teamwork (Objective 3). Id. at 16-18; IAF, Tab 17 at 8. Following the
conclusion of the 120 -day PIP period, the appellant’s supervisor, via
memorandum dated June 11, 2018, advised the appellant that she had raised her
performance back to the fully successful level of performance for both critical
elements. IAF, Tab 5 at 19-20. The memorandum informed the appellant,
however, that if she did not maintain at least a fully successful level of
performance in either of those elements during the remainder of the 1-year period
following the January 30, 2018 beginning date of her PIP, i.e., January 30, 2019,
she may be reassigned, demoted, or removed without further opportunity to
demonstrate an acceptable level of performance. Id.
On December 11, 2018, the appellant’s supervisor proposed the appellant’s
removal for unacceptable performance. IAF, Tab 1 at 8-11. She found that the2
appellant’s performance was once again at the unacceptable level in both
Objectives 2 and 3. Id.; IAF, Tab 17 at 10. After considering the appellant’s oral
and written replies to the proposal, the appellant’s second-level supervisor issued
a decision imposing the removal, effective February 8, 2019. IAF, Tab 1
at 12-15, Tab 5 at 9-10.
The appellant filed a formal EEO complaint concerning her removal,
arguing that the agency discriminated against her based on disability, race, and
age. IAF, Tab 5 at 46-58. The agency issued a final agency decision on July 15,
2019, finding no discrimination, id., and the appellant timely filed this appeal,
IAF, Tab 1. After holding the requested hearing, the administrative judge issued
an initial decision finding that the agency carried its burden of proof and
sustaining the appellant’s 5 U.S.C. chapter 43 removal. IAF, Tab 35, Initial
Decision (ID). He found that the appellant did not prove her affirmative defenses
of race, age, or disability discrimination. ID at 10-31.
The appellant has filed a petition for review, and the agency has responded.
Petition for Review (PFR) File, Tabs 1, 3. On petition for review, the appellant
argues that the administrative judge did not address discrepancies in the
testimonies of agency witnesses concerning her reasonable accommodation
request, abused his discretion in denying her motion to compel discovery, and
made harsh statements during the prehearing conference that caused the agency to
revoke a settlement offer. PFR File, Tab 1 at 4-5. She also appears to argue that
the agency initiated settlement discussions in an untimely manner based on the
Acknowledgment Order. Id. at 5.
ANALYSIS
The administrative judge correctly concluded that, under the law in effect at the
time, the agency satisfied its burden to prove that the appellant’s performance
was unacceptable.
At the time the initial decision was issued, the Board’s case law stated the
following. In a performance-based action under 5 U.S.C. chapter 43, an agency3
must show by substantial evidence that (1) the Office of Personnel Management
(OPM) approved its performance appraisal system; (2) the agency communicated
to the appellant the performance standards and critical elements of her position;
(3) the appellant’s performance standards are valid under 5 U.S.C. § 4302(c)(1);
(4) the agency warned the appellant of the inadequacies of her performance
during the appraisal period and gave her a reasonable opportunity to improve; and
(5) the appellant’s performance remained unacceptable in at least one critical
element. White v. Department of Veterans Affairs , 120 M.S.P.R. 405, ¶ 5 (2013).
Ordinarily, the Board will presume that OPM has approved the agency’s
performance appraisal system; however, if an appellant has alleged that there is
reason to believe that OPM did not approve the agency’s performance appraisal
system or significant changes to a previously approved system, the Board may
require the agency to submit evidence of such approval. Lee v. Environmental
Protection Agency , 115 M.S.P.R. 533, ¶ 5 (2010). Further, even if the employee
successfully completes the appraisal period, she may still be removed for
unacceptable performance under chapter 43 if (1) the instances of unacceptable
performance are in the same critical elements involved in the appraisal period,
and (2) the agency’s reliance for its action is limited to those instances of
performance that occur within 1 year of the advance notice of the appraisal
period. Muff v. Department of Commerce , 117 M.S.P.R. 291, ¶ 5 (2012).
In this case, the administrative judge found that the appellant did not raise
the issue of OPM’s approval of the agency’s performance appraisal system, and
the agency established by substantial evidence elements 2 through 4 of the White
standard. ID at 5-10; see 120 M.S.P.R. 405, ¶ 5. He further found that, although
the appellant successfully completed the appraisal period, the agency satisfied the
standard in Muff by showing by substantial evidence that she failed to meet the
fully successful annual performance standard for critical element/Objective 3
during the 1-year period prior to the issuance of her notice of proposed removal,
which was within 1 year of the advance notice of the appraisal period. ID at 5-104
(citing Muff, 117 M.S.P.R. 291, ¶¶ 5, 10). We affirm these findings, which are
supported by the record.2 Moreover, the appellant does not challenge these
findings on petition for review. See 5 C.F.R. § 1201.115 (“The Board normally
will consider only issues raised in a timely filed petition or cross petition for
review.”).
Remand is necessary to afford the parties an opportunity to provide evidence and
argument concerning whether the appellant’s placement on the PIP was proper.
During the pendency of the petition for review in this case, the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) held in Santos, 990 F.3d
at 1360-61, that in addition to the five elements of the agency’s case set forth
above, the agency must also justify the institution of a PIP by proving by
substantial evidence that the employee’s performance was unacceptable prior to
that time. The Federal Circuit’s decision in Santos applies to all pending cases,
including this one, regardless of when the events took place. Lee v. Department
of Veterans Affairs , 2022 MSPB 11, ¶ 16. Therefore, we must remand the appeal
to give the parties the opportunity to present argument and additional evidence on
whether the appellant’s performance during the period leading up to the PIP was
unacceptable in one or more critical elements. See id., ¶¶ 15-17. On remand, the
administrative judge should accept argument and evidence on this issue and hold
2 We clarify that Muff does not announce an absolute rule requiring an agency to rely on
a 1-year period of performance to remove an employee; rather, it explains that the
Board determines what constitutes substantial evidence of genuinely unacceptable
performance in the context of an employee’s annual performance plan on a case-by-case
basis. See Thomas v. Department of Justice , 117 M.S.P.R. 291, ¶ 10 n.4 (2014)
(discussing Muff, 117 M.S.P.R. 291, ¶ 8). Here, although the agency’s notice of
proposed removal, dated December 11, 2018, informed the appellant that its action was
based on the appellant’s performance during the period since May 30, 2018, IAF, Tab 1
at 8-9, the administrative judge determined that the appellant’s overall performance
during the 1-year period preceding the proposed removal was the appropriate
evidentiary period. ID at 5-7. We find no material error in the administrative judge’s
conclusion that the agency proved by substantial evidence that the appellant’s annual
performance was unacceptable. Id. Therefore, we need not determine whether the
6-month period relied upon in the proposal notice would have constituted substantial
evidence of genuinely unacceptable performance under the circumstances of this case.5
a supplemental hearing, if appropriate. Id., ¶ 17. The administrative judge
should then issue a new initial decision consistent with Santos. See id. If the
agency makes the additional showing required under Santos on remand, the
administrative judge may incorporate in the remand initial decision his prior
findings on the other elements of the agency’s case. See id.
On remand, the administrative judge should make new findings on the appellant’s
affirmative defenses.
The appellant raised affirmative defenses of disability, race, and age
discrimination, which the administrative judge found unproven.3 ID at 10-31. On
review, the appellant appears to challenge the administrative judge’s credibility
determinations, and particularly those determinations that underlie his finding
that she did not establish her claim of disability discrimination based on a failure
to accommodate. Id. at 4; see ID at 21-31. 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 the hearing;
the Board may overturn such determinations only when it has “sufficiently sound”
3 In her initial appeal and prehearing submission, the appellant also appeared to raise
the following harmful procedural error claim: the case processing times set forth in
critical element 3 of her performance plan violated 5 C.F.R. § 610.111 because it
expected that investigators work 75 to 90 consecutive days. IAF, Tab 1 at 5, Tab 19
at 9. The initial decision, however, does not address a claim of harmful procedural
error. In determining whether an appellant effectively abandoned an affirmative
defense or, conversely, whether there is a basis to remand the appeal for additional
proceedings regarding an affirmative defense, the Board will apply the nonexhaustive
list of factors set forth in Thurman v. U.S. Postal Service , 2022 MSPB 21, ¶¶ 9-28.
Here, following the parties’ prehearing submissions, the administrative judge conducted
a prehearing conference and issued an order summarizing that conference in which he
identified the issues presented on appeal. IAF, Tab 21. The issues he listed did not
include this affirmative defense, and the order stated that no further defenses will be
accepted absent a showing of good cause. Id. Furthermore, the parties were provided
an opportunity to object to the prehearing conference order at the start of the hearing,
but no objections were made. IAF, Tab 21 at 18, Tab 34-1, Hearing Recording.
Finally, the appellant did not raise this affirmative defense in her petition for review,
whereas, despite her pro se status, she raised several other cognizable arguments.
PFR File, Tab 1. Based on all the above, we find that there is no basis to remand the
appeal for additional proceedings regarding this affirmative defense. See Thurman,
2022 MSPB 21, ¶¶ 9-28.6
reasons for doing so. Haebe v. Department of Justice , 288 F.3d 1288, 1301 (Fed.
Cir. 2002). Because the appellant has not identified such reasons here, we
decline to overturn the administrative judge’s credibility findings.4
Nonetheless, on remand, the administrative judge must further adjudicate
the appellant’s claims of disability, race, and age discrimination. The Board must
consider an appellant’s pre-PIP performance in the context of an affirmative
defense when, as here, the validity of the agency’s proffered reason for taking the
performance-based action is a factor in analyzing that claim. Lin v. Department
of the Air Force , 2023 MSPB 2, ¶ 25 (citing Santos, 990 F.3d at 1363-64);
Pridgen v. Office of Management and Budget , 2022 MSPB 31, ¶ 31 n.8; see IAF,
Tab 19 at 7-8. Further, in the period since the administrative judge issued his
initial decision, we clarified the evidentiary standards and burdens of proof for
the appellant’s affirmative defenses in Pridgen, 2022 MSPB 31, ¶¶ 20-25, 27-29,
30-33, 40-42, and Wilson v. Small Business Administration , 2024 MSPB 3,
¶¶ 11-19. In the proceedings on remand, the administrative judge should advise
the parties of the standards set forth in Pridgen and Wilson, provide them with an
opportunity to present argument and evidence, and hold a supplemental hearing,
if appropriate, on the appellant’s affirmative defenses to permit the parties to
address those standards, as well as any claims regarding the appellant’s pre-PIP
performance. He should then apply the standards set forth in Pridgen and Wilson
in the remand initial decision, but he may incorporate his previous findings of
fact to the extent appropriate.
4 To the extent that the appellant is arguing that the administrative judge failed to
consider purported discrepancies in the agency witnesses’ testimonies and affidavits, we
are not persuaded. PFR File, Tab 1 at 4; see ID at 21-31. The initial decision contains
a thorough discussion of the relevant evidence, ID at 21-31, and any failure on the part
of the administrative judge to mention all of the evidence does not mean that he did not
consider it in reaching his decision. Kingsley v. U.S. Postal Service , 123 M.S.P.R. 365,
¶ 15 (2016).7
The appellant’s remaining arguments do not warrant Board review.
Discovery
The appellant argues that the administrative judge abused his discretion in
denying her motion to compel the discovery of comparator evidence that would
support her claim of disparate treatment discrimination. PFR File, Tab 1 at 4-5;
see IAF, Tabs 9, 10, 14. The administrative judge’s order reflects that he denied
the appellant’s motion to compel because the appellant subsequently reported that
she had located the agency’s discovery responses and, moreover, her motion did
not comport with the requirements of 5 C.F.R. § 1201.73(c)(1). IAF, Tab 14
at 1-2; see IAF, Tab 10 at 4. We find that the administrative judge did not abuse
his discretion in denying the appellant’s motion to compel and therefore find no
reversible error. See Vaughn v. Department of the Treasury , 119 M.S.P.R. 605,
¶ 15 (2013) (holding that an administrative judge has broad discretion in ruling
on discovery matters and, absent an abuse of discretion, the Board will not find
reversible error in such rulings); 5 C.F.R. §§ 1201.73(c)(1)(iii) (requiring a party
moving to compel to file a statement that the moving party has discussed or
attempted to discuss the anticipated motion with the nonmoving party or nonparty
and made a good faith effort to resolve the discovery dispute and narrow the areas
of disagreement), 1201.74(a) (providing that an administrative judge may deny a
motion to compel discovery if a party fails to comply with the requirements of
section 1201.73(c)(1)).
However, we note that the evidence allegedly sought by the appellant
through her discovery requests is relevant to an issue that the administrative
judge must further adjudicate on remand. PFR File, Tab 1 at 5. On remand, the
administrative judge must develop record evidence as necessary and appropriate,
while considering administrative efficiency and fairness to the parties. See
Pridgen, 2022 MSPB 31, ¶ 31 n.8. Accordingly, we leave the scope of any
further discovery to the sound discretion of the administrative judge on remand. 8
Inadequacy of Settlement Discussions
The appellant asserts, for the first time on review, that the agency did not
contact her to discuss the possibility of settlement within the timeframe ordered
by the administrative judge in his Acknowledgment Order. PFR File, Tab 1 at 5;
see IAF, Tab 2 at 2. The appellant did not raise this as an issue at any point
during the proceedings below. In any event, we find that any failure on the part
of the agency concerning settlement discussions did not prejudice her substantive
rights and therefore provides no basis for reversal of the initial decision. See
Jones v. Department of the Interior , 70 M.S.P.R. 182, 186 (1996).
Administrative Judge Bias
The appellant asserts that the administrative judge made a harsh assessment
of her case during the prehearing conference that caused the agency to withdraw
its previous settlement offer. PFR File, Tab 1 at 5. Specifically, the
administrative judge allegedly expressed that someone in the appellant’s position,
i.e., an EEO Investigator, should have known how to obtain the reasonable
accommodation that she needed. Id. In making a claim of bias or prejudice
against an administrative judge, a party must overcome the presumption of
honesty and integrity that accompanies administrative adjudicators. Oliver v.
Department of Transportation , 1 M.S.P.R. 382, 386 (1980). An administrative
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army , 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
(quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). We find that the
appellant’s assertion neither overcomes this presumption nor demonstrates any
favoritism or antagonism on the part of the administrative judge. 9
ORDER
For 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.10 | Hereford_Melissa_M_AT-0432-19-0677-I-1_Remand_Order.pdf | 2024-08-02 | MELISSA M. HEREFORD v. DEPARTMENT OF DEFENSE, MSPB Docket No. AT-0432-19-0677-I-1, August 2, 2024 | AT-0432-19-0677-I-1 | NP |
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